CO 



Cm 



THE THEOEY 



OF 



OUR NATIONAL EXISTENCE, 

AS SHOWN BY 

THE ACTION OF THE GOVERNMENT OF THE 
UNITED STATES SINCE 1861. 




JOHN C. HURD, LL.D., 



AUTHOK OF "THE LAW OF FREEDOM AND BONDAGE IN 
THE UNITED STATES." 



"Etenim si incertam vocem det tuba, quis parabit se ad bellum? " 

Epistola Pauli ad Corinthios, prima: cap. xiv. vers. viii. 



OCT 1C 

No.. 



BOSTON 
LITTLE, BROWN, AND COMPANY. 

1881. 



\\ 



Copyright, 1881, 
By John C. Hurd. 



University Press: 
John "Wilson and Son, Cambridge. 



DEDICATED IN HOMAGE 



SOVEREIGN: 

WHOEVER HE, SHE, OR THEY, 
MAY BE. 



INTRODUCTION. 



The remark is attributed to Paley that it is much 
harder to make men see a difficulty than to make them 
understand the explanation of it. Mr. Walter Bagehot, 
a writer on the English Constitution, in referring to this as 
a shrewd observation adds: " The key to the difficulties of 
most discussed and unsettled questions is commonly 
in their undiscussed parts. They are like the background 
of a picture, which looks obvious, easy, just what any one 
might have painted ; but which in fact sets the figures in 
their right position, chastens them, and makes them what 
they are." 

Mr. Bagehot applies this to the difficulty of under- 
standing parliamentary government, especially in Eng- 
land. I think the observation is equally applicable to the 
discussion of political questions in America. The disputes 
which have been going on here, ever since the formation 
of a government independent in respect to the rest of the 
world, may be due to our failure to bear in mind some 
circumstances attending all political existence, which 
must precede, in the order of being, those which we 
ordinarily consider both fundamental and peculiar to our- 
selves. 

If this is the case with us, I should state the inquiry of 
which the discussion had been omitted as this : How do 
we know our political existence to be a fact ? 



VI INTRODUCTION. 

Dr. Brownson, in his " American Republic " (p. 2), has 
perhaps expressed the same thought more elaborately 
when he said : " Among nations, no one has more need 
of full knowledge of itself than the United States, and no 
one has hitherto had less. It has hardly had a distinct con- 
sciousness of its own national existence, and has lived the 
unreflective life of the child, with no severe trial, till the 
recent rebellion, to throw it back on itself and compel 
it to reflect on its own constitution, its own separate exist- 
ence, individuality, tendencies, and end." 

It appears to me that all our political writers, without 
exception, have started with the idea that we have no 
business to have any self-consciousness, or to ask ourselves 
such a question as the above. They seem to assume that 
in this country, if in no other, the existence of political 
facts is not determined by the observing intellect employ- 
ing the bodily senses, but by knowledge of certain princi- 
ples of morals. They seem to take for granted that here at 
least, if nowhere else in the world, not only does that 
political fact exist which ought to exist, but it exists 
simply because it ought to exist ; or that all they have to 
do to prove its existence is to show that, if it existed, it 
would agree with certain principles of morals. 

During the sixteenth and seventeenth centuries a form 
of political instruction was popular which was followed by 
Sir Thomas More in his " Utopia," by Harrington in his 
" Oceana," and b}^ other English writers in works less well 
known. These were avowedly inventions, fictions, describ- 
ing, as if they were facts, what the writers thought would 
be facts if facts were what they ought to be. The method 
of these writers differed from that of Plato, in his dia- 






INTEODUCTION. Vll 

logue on The Republic, only in this, — that Socrates and 
his friends were there imagined as discussing things as 
they wished they might be ; while these writers spoke of 
their fictitious republics as actually existing. 

Nearly all descriptions of American political institutions 
seem to me to have partaken something of the character 
of these Utopian dreams. The conception of a political 
philosophy as peculiar to the inhabitants of this country, 
and providentially designed for them in advance, has not 
been confined to any particular party or parties, school or 
schools, or to the residents of any one part of the country 
more than to those of another part. All American publi- 
cists may be seen, more or less plainly, endeavoring to 
prove the existence of matter of political fact in this 
country by arguing that such or such a state of things 
ought to be the existing fact in this country. 

The cause of this may be traced further back than the 
Revolution of 1776. It may be said to have been a natural 
outgrowth of the circumstances attending the colonization 
by Englishmen of vacant territory under the political 
dominion of a sovereign separated from them by an ocean 
not then so traversable as to-day. They had left England 
at the time when, as Hume says, plans of imaginary 
republics, like those of Harrington and More, were daily 
subjects of debate and conversation ; and, under the cir- 
cumstances in which they found themselves, the reason- 
ings of the individual colonists on the abstract right or 
propriety of all political arrangements seemed not only 
to precede the exercise of any visible political authority, 
but also to be the cause of its recognition. This aspect of 
political existence was heightened by the effect on personal 



viii INTEODUCTIOIsr. 

character of the motives inspiring the early colonists of 
New England, and of those ideas of the relation of gov- 
ernment to religion which we associate with the term 
" Puritan." 

This habit of thought on questions of political existence 
received fresh strength during the eighteenth century from 
the influence, both in Europe and America, of contempo- 
rary French authors, whose theoretical method was essen- 
tially the same. It had general ascendancy up to the 
period of the Revolution of 1776, when it became formu- 
lated in the Declaration of Independence. For the words 
of that instrument assert, substantially, that the thirteen 
colonies are, that is, are as matter of fact, States indepen- 
dent of Great Britain and the rest of the world, because 
there is some moral law in existence by which they ought 
to be so. 

I have said that this method of demonstrating political 
existence has continued to be illustrated by American 
statesmen and political writers generally, since the Revo- 
lution, not being characteristic of one class or section 
more than another ; but for my present purpose, in intro- 
ducing this essay, it is chiefly noticeable as it appears in 
the writings of those who have more especially represented 
opinion in the Northern States. 

It appears to me that Kent and Story, with others who 
have recently succeeded to their position as teachers of 
public law, to say nothing of many jurists on the bench, 
have written and spoken of our actual government as if 
it was their duty, above all things else, to exhibit it as 
agreeable to some principles assumed by agreement 
between themselves and their readers to be just, and to 



INTRODUCTION. IX 

have thought that no political source of public law could 
be recognized as an existing fact, unless its accordance 
with what they personally would regard as goodness of 
political design could be demonstrated. 

These writers, as a class, seem to ignore the fact that, 
in every country in the world, there must be somebody 
in existence whose measure of right everybody else must 
accept as the rule of action before there can be any pub- 
lic law at all; or they conduct their demonstration as 
if they had shown that there was actually an exception, 
as to this general condition, in the case of this country. 

So far as they have recognized this condition, in respect 
to this country, it has been by putting a hypothesis in 
the place of the fact. A fact is known by the observing 
intellect, aided by the bodily senses, as existing, whether 
in the judgment of the moral sense it ought to exist or not. 
The hj^pothesis in this case is framed to agree with the 
framer's a priori notions of political right. 

As a consequence of this method of treating the subject 
by our professed guides and instructors, an idea appears in 
all our political controversies, as conducted in represen- 
tative assemblies, on platforms, or by printed publications, 
that there is no fact of a political nature, as distinguished 
from a legal nature, to be ascertained at all ; or that we 
must regard as a fact that which is only an opinion, sup- 
ported "^y some moral considerations. And, as political 
obligation k not distinguished in idea from obligations 
enforced only by """he individual conscience, so, in close 
connection with this sort of philosophy, is the practical 
result that the obligation of law is referred to the consent 
of the individual. 



X ESTTKODUCTION. 

Americans have, indeed, the reputation of being a more 
law-abiding people than the populations of other countries. 
This may be well deserved, if law is regarded only as 
a rule corresponding more or less closely with ordinary 
ideas of justice. Equality of condition and extension of 
average intellectual education have accustomed a propor- 
tionately larger number to recognize law, in its moral 
aspect, and to appreciate the general advantage of its 
being obeyed. 

But when the question is of obedience without refer- 
ence to its approval by the moral sense of those to whom 
the rule applies, that is, when law is presented as the rule 
of action given by some political superior, there is here, as 
in no other country in the world, a feeling that, for us, 
laws exist without reference to the will of any such supe- 
rior, and therefore cannot have binding force for any such 
reason. 

The consequence is that Americans are almost destitute 
of the ideas of loj T alty and allegiance, and do not conceive 
of rebellion, treason, and civil war as they are appre- 
hended in other countries. 

The civil war of 1861 has always been, for this reason, 
an astonishment and a puzzle to the people of the North- 
ern States. They looked upon the action of the people 
of the Southern States as presenting only a question of 
morals. They have never been able to see that the contro- 
versy was not about obligations under law, regarded 
simply as a measure of right and wrong, but was one 
about political obligation in reference to a fact ; and that 
this was an entirely distinct matter. 

It is in view of these considerations that I here make an 



INTEODTJCTION. XI 

admission which may seem a singular introduction to 
these pages, — that is, that the title selected is actually 
a misnomer. 

It is not unlikely that on glancing over a few pages the 
reader would make the observation for himself. The name 
" theory " suggests the treatment of a subject, by starting 
from some principles, assumed or admitted, with the pur- 
pose of arriving at some conclusion presented as a deduc- 
tion from those principles. A theory so framed, by 
reasoning a priori, is, however, precisely the opposite in its 
nature to that treatment of the subject which I have 
herein attempted. 

It is indeed not a theory, but a fact, which is here the 
object of the investigation. The term " theory " may, how- 
ever, be conveniently used to designate a generalization from 
a number of facts which are the particular instances for the 
generalization. An induction from such instances, rea- 
soning a posteriori, gives a result which, though essen- 
tially a fact, may for convenience be called a theory. So 
it is common to speak of the mutual attraction existing 
between all material substances, which is commonly called 
the attraction of gravitation, as a theory ; meaning a fact 
described by generalizing a number of particular instances, 
such as the fall of an apple to the earth. 

It is a theory as identified with a fact, not a theory as 
distinguished from a fact. It is only in this sense that I 
call national existence a theory. I have conducted my 
inquiry on the supposition that the existence of a nation 
as a political being may be known by generalizing certain 
actual events, regarded as exhibitions of political force or 
energy, in the hands of some actually existing human 



Xll rNTKODUCTION. 

beings ; which events are to be accepted as facts, because 
nobody can help accepting them as facts. 

With such a conception of the proposed investigation, it 
will be seen that I have no political philosophy or doctrines 
of political ethics to set before the reader as axioms to be 
accepted in determining the existence or non-existence 
of the facts, even as political facts. Indeed, the negation of 
the necessity for such doctrines may be regarded as the 
only axiom on which the investigation is founded. 

But, in view of what has already been said as to the 
prevailing method of considering political subjects in this 
country, I anticipate that there will -be some persons 
whose first objection to any conclusion here presented 
will . be founded on a rejection of such an axiom. There 
may be some who do not propose to recognize as political 
facts any facts which do not conform to certain a priori 
doctrines, or who will insist that the acceptance of the 
political fact must depend on its conformity to certain pre- 
existing laws, principles, or ideas assumed to be just or 
in accordance with certain principles of justice. 

I shall not dispute with such readers whether anything 
we call a fact can be settled by any such method. All 
that is material for me to say about it is that such a 
method is not the method here followed. The only argu- 
ment I propose to give to show the folly of such a method 
is to produce the results of a method entirely opposite ; 
as is herein attempted. 

If the arrangement of the material forming the bulk of 
this essay may be justly criticised for want of system 
or of logical continuity, I still claim that the purpose to 
proceed by way of induction from a variety of particu- 



INTRODUCTION. Xlll 

lar instances or examples may give sufficient unity to the 
whole, in spite of such a lack of formal connection 
between the several parts. 

As further explaining the method, or want of method, of 
the whole, it may be excusable for me to mention that by 
far the larger part of the material has been put together 
since the first and second chapters were in type, in the 
summer of 1879, when it was proposed to make of the 
whole only a pamphlet of one hundred and odd pages, from 
matter which had originally been prepared as a review of 
the political doctrines announced in one or two official 
papers, and in some judicial opinions then recently pub- 
lished. 

As the object of inquiry presented itself more distinctly 
as a political fact, its relation to judicial opinion, and to all 
that class of opinion usually called "authority," devel- 
oped in a different light. It was apparent that the ques- 
tion of the existence of such a fact could not be a legal 
one ; that is, that it could not be settled by the judicial 
function, nor by the judgment of any person in official sta- 
tion of any sort. But it was seen, at the same time, that 
judgments of courts of law, if they are actually carried 
into execution, are acts of government, which must be 
accepted as indications of the existence of the political 
fact that somebody actually exercises power over others. 

Viewed in this light, the cases decided by the courts 
stand in the same relation to the political truth which is 
the object of search, as do the acts of officers of other depart- 
ments of a government. All these, as events which have 
actually taken place, are more material for indicating the 
location of political force than any juristical opinions can be. 



XIV INTRODUCTION. 

From this point of view the action of the several depart- 
ments of the Government is equal in political significance. 
Each act of government has political value, and the larger 
the number of the particular instances, and the greater the 
variety, as far as the nature of the inqui^ admits, the 
surer should be the basis for the induction of the polit- 
ical truth. It will be seen that the later portions of this 
essay are based more distinctly upon this idea. 

It is to be borne in mind that the principle followed in 
this inquiry is to accept evidence from any possible source, 
but to pay no regard to any opinions as "authority" for 
settling the question of fact considered. There is no 
appeal made to great names, as if the opinion of any man 
or men, however wise or prominent, could decide the ex- 
istence of a fact, even of a fact occurring in their own 
day, to say nothing of facts which took place before they 
were born. The statements of persons living or dead are 
quoted, so far as they are quoted at all, as testimony on the 
question of fact, — a question of history, so far as it is past 
fact in distinction from present fact. But, being only tes- 
timony, all such statements are freely compared with 
evidence from every other source. 

I think it may be said with truth that the desultory and 
informal method of inquiry here followed is in accordance 
with the actual process by which all political existence is 
apprehended by the bulk of those who are concerned 
to ascertain it. It may be that it is not the manner of the 
scholar's private study, nor that of the professor's chair. 
It is not asking for knowledge ex cathedra. But it is 
in this manner that the mass of mankind at all times 
and in all countries become aware of the existence of 



INTRODUCTION. XV 

those political facts with which they must agree to live, 
if they choose to live at all. It is the way in which polit- 
ical authority becomes known to those who move in the 
ordinary walks of life, whether they are concerned with 
that authority in the every-day relations of peaceful soci- 
ety, or in the crises of war, foreign or domestic. In any 
case the knowledge is acquired in the forum, on the 
market-place, by the fireside or at the tavern, by talking 
over with other people events which actually take place. 

Let us imagine some intelligent traveller finding out 
some country previously unknown to the rest of the world : 
whatever other objects he might have in view, his first 
necessity would be to discover the person or persons whose 
will was there obeyed by the mass of the population, or 
who held so much power among them that his own life, 
security, and liberty of action would depend upon his or 
their disposition towards himself. It might be that the 
traveller came with a special purpose to learn the laws by 
which the action and mutual relations of the inhabitants 
were regulated. Whatever amount of verbal information 
he might receive on this point, or however extensive his 
personal observations of their manners and daily lives, he 
would not think that he could affirm the existence of any 
laws regulating their intercourse until he had found out 
some person or persons whose actual force and will could 
be traced as a cause securing obedience to such laws. 

In making this inquiry the supposed traveller would re- 
ceive all statements on the subject made in apparent good 
faith, but he would constantly compare them with any ex- 
hibition of actual force or power which might come under 
his own personal observation. If he should discover cer- 



XVI INTRODUCTION. 

tain persons, not themselves under the command of any 
other, whose injunctions were actually obeyed by all other 
persons, or who actually punished all others, at their own 
discretion, for disobedience to their injunctions, and who, 
when their power had been resisted by force, had actually 
overcome such resistance by their own superior force, he 
would conclude that the power to maintain their will as 
law was actually in the hands of such persons, whatever 
verbal information to the contrary he might have re- 
ceived. 

We may imagine the supposed traveller as a modern 
newspaper correspondent commissioned to report to his 
employers, for the public at home, the character of such 
a newly discovered nation. This public at home would 
read his letters as a report on a matter of fact. Whatever 
might be his views of the nature of government in general, 
of the rights of man as a political animal, or at whatever 
school or college he might have been educated on these 
points, this public would not expect to learn anything 
from him on those topics. If, instead of describing what 
he actually saw, he should send back his views as to what 
laws and institutions would-be beneficial to the country 
he was exploring, or if he should be detected in repre- 
senting the state of things there as if it proved the correct- 
ness of his own theories of political existence, his emplo3^ers 
would let him know that he might benefit the public in 
that way as well by staying at home, and that it was not 
for any such purpose that he was commissioned as a trav- 
elling correspondent. 

Whatever might have been the ideas on the nature of 
government in general accepted at home, the supposed trav- 



INTRODUCTION. XV11 

eller would not assume that such ideas were equally ac- 
cepted in the place whose institutions he was to observe. 
However secure or pleasant he might have regarded his 
position in a county where such ideas had been accepted 
by the possessors of power, he would not depend upon 
such ideas as sufficient to protect his life, person, or prop- 
erty in the strange land he was exploring. Even if he 
had sought the country in question as a political apostle, 
filled with zeal to spread by persuasion ideas which he 
thought best for the government of all countries, he would 
address himself to finding out what persons were so placed 
that the influence of such ideas depended on their assent 
to or their adoption of them, in action. 

But however ready he might be to recognize the exer- 
cise of power as a fact, the traveller would have some 
preconceived notions as to the nature of the power whose 
possessors he wished to identify. These notions would be 
founded upon his previous knowledge of the necessary con- 
ditions of human existence. Whatever he might hear and 
whatever he might see, he would know that it could only 
be human will and human intelligence which could direct 
the power when manifested ; that, if it was any power at 
all, it was the power of human beings. The people among 
whom he sojourned might point to some sacred grove, 
whose leaves whispered to the reverent ear ; or lead him 
to some cavern, in whose vapors a priest raved in ecstacy ; 
or show him some block of stone or metal, said to be 
fallen from the sky, which gave a hollow sound under- 
stood by a privileged few ; and they might assure him 
that these sounds, utterances, or whispers directed what 
was to be done and what was not to be done. But what- 



xviii raTRODTJCTiOjsr. 

ever deference the supposed traveller might have been 
obliged to yield to similar pretensions in his own country, 
he would, in the strange land where he came as an ob- 
server, look to those who served the idol, occupied the 
cavern, or possessed the grove as the real holders of the 
power to govern. 

Or the traveller might have found a people using a writ- 
ten language, who might show him inscriptions on stone, 
brass, wood, parchment, or paper, and tell him that these 
monuments were the rules by which alone every person in 
the land acted or refrained from acting; that these inscrip- 
tions were themselves the power he sought, and the only 
holders of the power. But if the traveller came from any 
other country than the United States he would still look 
about for a human agency, a human intellect interpreting 
the meaning of the words, and a human will and force com- 
pelling obedience to that meaning, and would ascribe the 
authority of these written monuments to those who were 
visibly uncontrolled in executing the injunction or leaving 
it unexecuted. 

Or the traveller might be told that, in that country and 
among that people, the person whom he sought was not to 
be found, because the force or power of which, as he 
supposed, some persons must be possessed, did not there 
exist. He might be informed that in that country every- 
thing that was done or left undone was so done or left 
undone by the will or consent of the several persons by 
whom, as the actors, it might be so done or left undone. 

This people might say that, while their written monu- 
ments described or defined the relations of individuals to 
each other, there was no force giving effect to these provi- 



INTRODUCTION. xix 

sions, as law, because the consent of the individuals whose 
relations were so described or defined was sufficient to 
maintain the existence of such relations. 

The traveller might, at the same time, observe persons 
who were suffering penalties for transgressing the pro- 
visions of these laws, and some who, at the instance of 
others, had been subjected to coercion in respect to 
their relations to these others ; and he might be told that 
these penalties were borne and this coercive action took 
place only by the consent of the individuals affected by them. 

Or the traveller, while sojourning among this people, 
might witness a war in which millions of this people had 
risen in arms, with the declared intention to nullify or 
make void, as to themselves, the public relations defined 
or described by the written monuments, or so-called laws ; 
and he might be told that the sacrifice of life, disaster, and 
final defeat suffered by these millions, followed by the un- 
restrained action of the other party to this war, were an 
illustration or evidence both of the fact that all public rela- 
tions in that country rested on the consent of the individ- 
uals affected by such relations, and of the inherent potency 
of the written monuments to maintain their own pro- 
visions ; and, moreover, as a proof of the absence of any 
such power-holder as he had made the object of his vain 
inquiry. 

What opinion the supposed traveller might have of this 
testimony would depend, perhaps, very much on the place 
of his nativity. He might at any rate be able to tell the 
supposed people that they were not, as they might have 
imagined, the only nation in the world glorying in such 
conceptions of itself ; that, to his knowledge, the people 



XX INTRODUCTION. 

of the United States of America had always contended 
that this was precisely their own position. 

Like the supposed traveller, I have regarded myself 
bound to search for a fact. I have, then, no political philo- 
sophy to offer, by which the existence or non-existence of 
observed facts should be judged ; nor do I propose to 
argue for the existence of political facts from the existence 
of other facts which are not political facts. I do not pro- 
pose to show, from principles assumed a priori, what poli- 
tical energy has been actually exhibited here hy human 
beings ; nor do I propose to show the same thing by con- 
clusions as to the necessary result of conditions of soil and 
climate, the relative situations of seas, rivers, mountains, 
and other geographical phenomena. 

As I have no principles of political philosophy to start 
with, I do not propose to use any observed facts as illustra- 
tions to prove the merit or demerit of any such principles. 
That such a method of testing political principles is a 
proper one, and that it offers a subject worthy of the 
severest study, I readily agree : but it is not the subject 
here considered. 

Yet, without having any preconceived political theories 
to start with, by which to judge of the existence or non- 
existence of observed facts, it is still necessary to have 
some definite idea of the object of search. I am prepared 
to recognize any existing political fact, as a fact. But, in 
searching for a fact, something in the nature of a definition 
of the fact sought is required. This I propose to give here 
as definition, in distinction from doctrine. Though I am 
aware that some will say that such definition is doctrine, 
I am obliged to state it as definition, or as propositions 



INTRODUCTION. XXI 

which need no proof, because I know of no proof that can 
be given. 

I conceive that wherever human beings exist in society, 
some of them do, as a matter of fact, exercise a power over 
others, — a power operating more or less visibly, in some 
form, quite distinct from the merely casual exercise of 
superior force and cunning exhibited by brute beasts 
towards each other. It is an intelligent exercise of power ; 
the power is consciously exercised by some in respect to 
others, who are conscious of its being so exercised. 

The power so exercised is voluntary or autonomous in the 
hands of those who exercise it. It is to be recognized only 
as it is so exercised voluntarily or'independently of control 
by any other holder of similar power. 

The power so exercised is limited only by conditions of 
physical existence. Those who hold it, being creatures of a 
moral nature, are under the obligations of a moral standard 
of action, imposing duties on them in the exercise of the 
power, which duties they may recognize more or less dis- 
tinctly. But the obligations imposed are not imposed un- 
der the power in question, and the possession of the power, 
as a fact, is determined independently of the observance of 
the obligation. Those who hold the power are not respon- 
sible under any power of the same sort, even so far as 
they are responsible at <ill. 

The power is one which is exercised continuously, or as 
a constant force. It has never been apprehended as begin- 
ning to exist in the hands of any actual holders, but known 
only as it has been transmitted to them from some former 
holder. History, as distinguished from fable, myth, or 
allegory, does not record its inception, but recognizes it 



XXU ESTTEODTJCTIOX. 

only as a power in operation, while tracing its transmission 
from one holder to another ; identifying it as the same 
power, by whatever persons it may be exercised. 

The power so held extends to all possible action of men 
in respect to others, and, though not necessarily exercised 
in respect to all such action, it extends to all such action 
in the sense that it is not separable in its possession rela- 
tively to varieties of such action. In respect to all vari- 
eties of such action it must be held as a unit, if it is held 
at all. "While it is capable of distribution, to an indefi- 
nite extent, in its exercise by agents, it is indivisible in 
the hands of its ultimate possessors. The possession of 
this power in respect td one form of human action can- 
not be absolutely separate from the possession of the same 
power in respect to any other form of human action. 

Whether as definition or as doctrine, these propositions 
will probably be objectionable to some. All that I shall' 
say in their defence is that, as definitions, they apply to 
the object of my own search. Whether they apply to 
some object which others may suppose ought to be the ob- 
ject of my search is a different matter, — one with which I 
really have no concern. 

Some will say, perhaps, that no such power exists any- 
where. If this is true, then, of course, the power cannot be 
found here. Some may say that a power exists, such as is 
here otherwise described, but that it is divisible in its pos- 
session as well as in its exercise, and, moreover, that it has 
been so held in division in this country. If this is so, then 
of course, my definition fails in that respect. All that I can 
say is that I have not yet seen it so divided. 

I have already forewarned the reader not to expect an 



INTRODUCTION. XX111 

array and balancing of " authorities," such as is proper in 
a matter of legal controversy. As I anticipate that the 
propriety of thus rejecting juristical authority on a matter 
of political fact ma}^ be questioned, I am also prepared for 
no slight censure for the manner in which I have presented 
the conclusions of some persons not now living, whose 
arguments on that subject have long been received at the 
North with almost as little question as if they had the 
stamp of inspiration. All that I can say in defence is, that 
whatever has been offered by anybody as argument must 
be judged by everybody else as argument : it cannot be 
received as authority. It is also just on my part to notify 
the reader that the conclusions on the matter of political 
fact which are here offered to his individual judgment are 
not in harmony with any advanced on the same subject by 
any considerable number of persons. Indeed, as far as I 
am aware, there is nobody now living who accepts similar 
conclusions, and but one other writer who ever presented 
a similar theory. 

The only person, so far as I have been informed, 
who took the same view of the political history of the 
country, and who deduced similar conclusions as to the 
political status of the States of the Southern Confederacy 
at the close of the war, was the late Dr. O. A. Brown- 
son, who announced them in several of the articles of his 
" Quarterly Review," published in 1864, particularly in 
an article entitled " Are the United States a Nation ? " in 
the October number. Dr. Brownson also stated them 
more systematically in his " American Republic," pub- 
lished in 1865. But how far his views have had any ac- 
ceptance, I have had no means of learning. 



XXIV rSTKODTTCTIOI*. 

I confess to feeling the presumption shown in occupying 
such an isolated position on a matter of general interest, 
and acknowledge that no excuse for making it known can 
be deemed adequate, if such an excuse is needed. Whether 
it will be needed is for the reader to decide. To de- 
scribe my view of this position, I think I may adopt the 
words written in respect to ethical controversy by an 
English author who has often battled single-handed for his 
beliefs. Mr. John Henry Newman, now Cardinal New- 
man, in his "Grammar of Assent/' p. 379, has said : "I 
begin with expressing a sentiment which is habitually in my 
thoughts whenever they are turned to the subject of men- 
tal and moral science, and which I am as willing to apply 
here to the evidences of religion, as it properly applies to 
metaphysics or ethics, viz., that in these provinces of in- 
quiry egotism is true modesty- In religious inquiry each of 
us can speak only for himself, and for himself he has a right 
to speak. His own experiences are enough for himself, but 
he cannot speak for others ; he cannot lay down the law ; he 
can only bring his own experiences to the common stock 
of psychological facts. He knows what has satisfied and 
satisfies himself : if it satisfies him, it is likely to satisfy 
others ; if, as he believes and is sure, it is true, it will 
approve itself to others also, for there is but one truth. 
And doubtless he does find in fact, that, allowing for the 
difference of minds and of modes of speech, what con- 
vinces him does convince others also." 

It is the same in respect to recognizing the political 
superior. That is a question whereon " each of us can 
speak only for himself, and for himself he has a right to 
speak." It is a question of personal experience. The 



INTRODUCTION". XXV 

only authority to each one is the authority which each one 
finds sufficient to compel his own recognition. 

While obliged to regret the isolation of my position in 
reference to the general treatment of the subject, I have 
the satisfaction of mentioning with gratitude my obliga- 
tions to my kinsman, John C. Ropes, Esq., of the Boston 
bar, not only for the encouraging interest taken in the 
publication of my views, but also for his critical super- 
vision of the whole as it has passed through the press. 

It can hardly be necessary to remind the reader that the 
subject of this essay is one on which people not only differ, 
but about which they sometimes get very angry. I do not 
expect any one even to read opinions on this matter which 
militate with his own without strong feelings of opposition, 
and if my views are thought worthy of anybody's attention 
I may be sure there will be some whom they will not 
please. To use the words of De Tocqueville, in the pre- 
face to his work on the French Revolution, " I trust I 
have written this work without prejudice, but I do not 
claim to have written dispassionately." Whatever my 
feeling on the subject, I have only claimed the right to 
think and speak for myself. But I have had no intention 
to denounce any who, having the same right, have adopted 
different conclusions. I am not aware of having used lan- 
guage of denunciation, and should regret if any expres- 
sions of mine should be so regarded. 

Boston, Sept. 15, 1881. 



TABLE OF REFERENCES TO CASES. 



Alexander's cotton, 2 Wallace, 404 64 

Amy Warwick, The [see Prize Cases), 2 Sprague's Decisions, 

143 ; 14 Monthly Law R. 498 49 n., 199 n., 263 

Armstrong's Foundry, 6 Wallace, 766 63 

Armstrong v. United States, 13 Wallace, 154 76 

Bates's Case, 4 Court of Claims, 569 181 n. 

Bermuda, The, 3 Wallace, 514 184, 185 n. 

Bigelow v. Forest, 9 Wallace, 339 80 n. 

Bollman and Swartwout, Ex parte, 4 Cranch, 75 80 n. 

Brillante, The. See Prize Cases. 

Burbank v. Conrad, 6 Otto, 310 78 n. 

Carlisle v. Henderson, 6 Court of Claims, 389; 8 lb. 153 . . . 189 
v. United States, 16 Wallace, 147 . . . . 181, 189, 191 n. 

Chavasse, Ex parte, The Jurist, XL, 400 184 n. 

Cherokee Nation v. Georgia, 5 Peters, 118 16 n. 

Chisholm v. Georgia, 2 Dallas, 419 . . 122 n., 137, 141 n., 298 n., 

310 n., 312 n., 316 n., 329 n., 498 n. 

Clarke, Ex parte, 10 Otto, 399 387, 399 

Cohens v. Bank of Virginia, 6 Wheaton, 414 429 

Collector v. Day, 11 Wallace, 120 382 n. 

Collie v. United States, 6 Court of Claims, 431 . 181, 183 n., 185 n., 

190 n. 

Confederate Note Cases, 19 Wallace, 548 7 

Confiscation Cases, 20 Wallace, 92 52 n., 62, 76, 320 

Conrad v. Waples, 6 Otto, 283 7S 

Coppell v. Hall, 7 Wallace, 542 192 n. 

Crenshaw, The. See Prize Cases. 

Davis, Jefferson, Case of, Chase's Decisions, 80 . . . 79, 82, 84 n. 

Day v. Micou, 18 Wallace, 156 64n.,80n. 

Delmas v. Ins. Co., 14 Wallace, 665 7 n. 



XXVlil TABLE OF REFEKENCES TO CASES. 

Dewing v. Perdicaries, 6 Otto, 193 7 n. 

Dow v. Johnson, 10 Otto, 158 179 n. 

Dred Scott's Case, 19 Howard, 441 135 

Egan, In re, 5 Blatchford, 323 44 n. 213, 223 

Ford ». Surget, 7 Otto, 594 . . 61 n., 66 n., 144 n., 157 n., 163 n., 
165 n. 

Gelston v. Hoyt, 3 Wheaton, 324 5 n. 

Georgia, The, 1 Lowell, 96 ; 7 Wallace, 32 188 n. 

Georgia v. Stanton, 6 Wallace, 65 148 n., 211, 364 n. 

Gibbons v. Ogden, 9 Wheaton, 1 . . '. 132 n. 

Grapeshot, The, 9 Wallace, 129 53 

Gray Jacket, The, 5 Wallace, 342 . . . .« 64 n. 

Grazebrook, The. See Chavasse. 

Green's Case, 6 Court of Claims, 420 188 n., 190 

# 

Habicht v. Alexander's Exr., 1 Wood, 412 194 n. 

Hamilton v. Dillon, 21 Wallace, 86 51 n. 

Hanauer v. Doane, 12 Wallace, 345 26 n., 158 n., 191 n. 

v. Woodruff, 15 Wallace, 439 158 n. 

Harrison's Case, 6 Court of Claims, 323 ; 8 lb. 472 . . 180, 193 n. 

Haycroft v. United States, 22 Wallace, 81 65 n., 77 

Hepburn v. Elzey, 2 Cranch, 452 16 

Hiawatha, The. See Prize Cases. 

Hickman v. Jones, 9 Wallace, 197 51 

Hill's Case, 8 Court of Claims, 470 180, 193 n. 

Horn v. Lockhart, 17 Wallace, 570 7 n., 26 n. 

Keith v. Clark, 7 Otto, 454 . . 22-33, 87, 149, 156, 157, 159, 252, 301 
Keppel's Admr. v. Petersburg R. R., Chase's Decisions, 210 . . 7 n., 
52, 82 

Lamar v. Browne, 2 Otto, 187 75 n., 77, 197 

Lane County v. Oregon, 7 Wallace, 76 12 n., 103 n. 

Lange, Ex parte, 18 Wallace, 163 80 n. 

La Plante's Case, 6 Court of Claims, 319 180 

Legal Tender Cases, 12 Wallace, 553 51 n., 89, 426 

Luther v. Borden, 7 Howard. 43 5 n., 250, 253 

McCulloch v. Maryland, 4 Wheaton, 316 312 n. 

MacVeigh v. United States, 11 Wallace, 259 68 

Matthews v. McStea, 1 Otto, 11 51 n. 



TABLE OF REFERENCES TO CASES. XXIX 

Mauran v. Ins. Co., 6 Wallace, 1 50 n. 

Merchants' Bank v. Union Bank, 22 Wallace, 293 53 

Miller v. United States, 11 Wallace, 268 69, 76 

Minor v. Happersett, 21 Wallace, 162 370 n. 

Munn v. Illinois, 4 Otto, 113 370 n. 

Osborn v. Nickerson, 13 Wallace, 655 22 n. 

Ouachita Cotton Cases, 6 Wallace, 529 180 n. 

Pargoud v. United States, 13 Wallace, 156 76 

Penhallow v. Doane, 3 Dallas, 93 10 n., 129, 315, 316 n. 

Prize Cases, The, 2 Black, 667 ... 49, 50, 164 n., 168, 169, 320 

Radich v. Hutchins, 5 Otto, 210 191 n. 

Rose o. Himely, 4 Cranch, 272 5 n. 

Rothschild v. United States, 6 Court of Claims, 204 .. . 178 n. 

Santissima Trinidad, The, 7 Wheaton, 310 184 n. 

Scott v. Jones, 5 Howard, 343 16 n. 

Shortridge v. Macon, Chase's Decisions, 144; 1 Abbott's U. S. 

Rep. 56 7 n., 79 n.,80n., 86 n. 

Siebold, Ex parte, 10 Otto, 382 388 

Slaughter House Cases, The, 16 Wallace, 36 370, 374 

Sprott v. United States, 20 Wallace, 459 . 7 n., 26 n., 178 n., 179 n. 

Stewart v. Kahn, 11 Wallace, 506 21 n. 

Strauder v. West Virginia, 10 Otto, 303 378 

Tennessee v. Davis, 10 Otto, 275 375, 410 

Texas v. White, 7 AVallace, 700 . . 8-17, 26 n., 51 n., 128, 257 n. 

Thorington v. Smith, 8 Wallace, 1 7 n. 

Tyler v. Defries, 11 Wallace, 331 68 n., 72 

Union Ins. Co. v. United States, 6 Wallace, 759 63 

United States, Lyon et al. v. Huckabee, 16 Wallace, 414 . 171, 172 n. 
United States v. Anderson, 9 Wallace, 56 4 n., 67, 76 

v. Burr, 4 Cranch, 469 80 n. 

v. Cruikshank, 2 Otto, 543 377 

v. Dieckelman, 2 Otto, 520 191 n. 

v. Greathouse, 2 Abbott's U. S. 380 60 

v. Ins. Cos., 22 Wallace, 99 7 n., 51 n. 

v. Insurgents, 2 Dallas, 335 80 n. 

v. Keehler, 9 Wallace, 83 7 n. 

v. Klein, 13 Wallace, 136 65 n., 67, 75 



XXX TABLE OF "REFERENCES TO CASES. 

United States, v. McEae, 8 Law E. Equity Cases, 69 . 173 n., 262 n. 

». Mitchell, 2 Dallas, 335 80 n. 

v. Morrison, Chase's Decisions, 525 53 

v. Padelford, 9 Wallace, 531 65 n., 67, 75 

v. Prioleau, 2 Hemming and Miller, 559 . 173 n., 261 n., 
319 

v. Eeese, 2 Otto, 214 377 

v. Smith, 1 Hughes, 317 173 

v. Winchester, 9 Otto, 375 191 n. 

Virginia, Ex parte, 10 Otto, 339 380,382 

v. Eives, 10 Otto, 314 379 

Wallach v. Tan Eiswick, 2 Otto, 207 ... 78, 79 n., 80 n., 177 n. 
White v. Hart, 13 Wallace, 649 . 5 n., 18, 51 n., 160, 256 n., 305, 364 
Williams v. Bruffy, 6 Otto, 176 ... . 7 n., 26 n., 162 n., 164 

v. The Suffolk Ins. Co., 13 Peters, 420 5 n. 

Windsor v. MacVeigh, 3 Otto, 277 69 n., 79 n. 

Young, Assignee of Collie v. United States, 7 Otto, 58 . 77, 178, 181, 
185 



THE THEORY 



OF 



OUll NATIONAL EXISTENCE. 



THE THEORY 



OUR NATIONAL EXISTENCE 



CHAPTER I. 

The Political Status of the Eleven States of the Confederacy 
in Consequence of the Rebellion, as described by Persons in 
the Several Departments of the General Government, m 
Opinions of Justices of the Supreme Court, and in the Lan 
guage of Presidents and of Congress on Reconstruction. 

It is common to speak of some battles as having decided 
the fate of empires. The rhetorical force of the expres- 
sion might lead ns to forget, for the moment, that military 
success and defeat cannot in themselves, however decisive 
strategetically, indicate any political supremacy for the. 
affirmance or denial of which the victor and the van- 
quished may respectively have taken up arms. A victory 
is decisive, in the sphere of political relations, only as 
being that which may have enabled one of the parties 
combatant to exhibit peacefully that sort of action which 
we call government, and which, as the exercise of dominion 
over persons and territory, is more continuously directed 
to civil than military affairs ; and, until this action may 
have ensued, no historical statement of the political value 
of antecedent military results can be expressed. 

The defeat of the armies under the command of General 
Lee and other military leaders commissioned by the con- 



4 EXISTENCE OF THE STATES IN UNION. 

Position of the Judicial Department. 

federacy, allowed the exercise, within the territory whose 
forcible separation from the Union had been resisted by 
arms, of whatever political authority had been maintained 
by the victorious belligerent. 1 

In most parts of the world, the administrative civil 
action following after military success would be most ob- 
viously shown in the exercise of what we are, in America, 
accustomed to discriminate as the executive function of a 
government ; after which the legislative and judicial 
powers, when exercised in separation from the executive, 
would appear to follow. We may conceive, vaguely, of 
some difference in respect to the order of manifestation of 
these functions, as following victory in the field, in the 
instances of a government like that of Russia, and one 
similar to the English ; and there might be cases where 
the legislative would appear as leading the two other 
functions. 

From the organization of government, here, any such 
exhibition of authority must have occurred hy the action of 
persons severally exercising the executive, the legislative, 
or the judicial function ; and, as the action of the execu- 
tive and legislative is supposed to be ultimately subject to 
judicial inquiry under a written constitution, it would ap- 
parently belong to the Supreme Court to indicate, finally, 
the nature, extent, and legal effect of any political power 
exercised within the territory affected by participation in 
the war. 

The political question, as to the existence of the States 
in the Union, which is discussed in these pages, is sup- 
posed to be examined from that point of view in which it 
must present itself to any person invested with judicial 

1 The date of " the close of the Rebellion was announced by the Presi- 
dent " by proclamation, bearing date Aug. 20, 1866, and this was recognized 
as the official date by Act of Congress, March 2, 1867. The authority of 
the general government had been unresisted in various States at different 
earlier dates. See United States v. Anderson, 9 Wall. 59, 60. 



THEORY OF OUR NATIONAL EXISTENCE. 5 

Judicial Opinion as Testimonj'. 

responsibility. Prominence has been given to some opin- 
ions delivered by various members of the Supreme Court, 
because, of all statements having the stamp of public sta- 
tion, bearing on questions of the political nature or status 
of the States, these are not only the fullest, but such as, 
above all others, have been expressed with the strongest 
presumption in favor of candid and practised deliberation, 
after dispassionate consideration of the best attainable 
arguments. 

Still, it is herein assumed that, from the nature of the 
judicial function, in every country, it must have limita- 
tions as a means of determining political rights and obli- 
gations. 1 The decisions of the court are recognized to be 
the final arbitrament as to all private rights and obliga- 
tions in cases at law, however dependent upon political 
doctrine. But, on the ground that the determination of 
political relations is beyond the scope of the judiciary, 
these opinions are not here presented as authority, but as 
on the same plane, as testimony, with others from some 
other sources. There will be no attempt to collate judi- 
cial decisions, as is done in legal treatises, with a view of 
deriving rules of law applicable to future cases. 

The judiciary of the United States, by assuming juris- 
diction of cases affecting persons and property within the 
districts which had been adversely occupied during the 
war, did thereby assert the authority in these localities of 
the government of the United States. This assertion was 
made also by executive and legislative action at the same 
time. We may believe that, in the popular estimate, this 
was all that needed, or could, be asserted on the part of 
the prevailing combatant. 

1 Compare Luther v. Borden, 7 How. 43, 47, 57 ; Rose v. Himely, 4 Cranch, 
272 ; Gelston v. Hoyt, 3 Wheat. 324, 634 ; Williams v. The Suffolk Ins. 
Co., 13 Pet. 420; and the citation of these in White v. Hart, 13 Wall, 
649, as noticed further on in this chapter. 



6 EXISTENCE OF THE STATES IN UNIOK 

The Question before the Judiciary. 

The question as to the nature, extent, and effect of the 
political power vindicated in the war has, however, been 
brought up by the inquiry, — whether the authority of the 
government of the United States, having been re-established, 
should be regarded as having been, in the legal point of 
view, continuously of the same extent, within those States, 
as it had been before, and as it had been and continued to 
be within the other States ; or whether it then became 
during the war, and was, for any time after, different ; and, 
if so different, in what respects, and, incidentally, for what 
reason, or upon what theory of the existence of what we 
call the United States of America. 

This inquiry, if made judicially, could arise only in 
actions at law affecting the rights of private persons, and 
not in cases or controversies admitting a formal judgment 
as to the political nature, effect, or consequences of the 
public events which had occurred ; containing, in terms of 
legal decision, a statement of the seat of ultimate political 
power as between any who might appear as the claimants. 

In the reported cases before the Supreme Court, there 
has been a general agreement that the States which con- 
stituted the Union before 1861, are now and have been, 
after an interval terminating at some date later than the 
cessation of military operations, in the Union, as they had 
been before. 

There has, however, been some disagreement as to the 
continuation, during the interval, of the political status of 
the States which had passed ordinances of secession, and 
in whose name as " the Confederate States " armies had 
been levied to resist the civil and military authority of the 
government of the United States. 

The inquiry as to the political nature of the States, or 
of their abilities or disabilities as affected by the rebellion, 
occurs most obviously in cases which arose, either on some 
claim of right founded on acts of the government of the 



THEORY OF OUR NATIONAL EXISTENCE. 7 

State Action distinguished from Confederate. 

Confederacy, or on some claim founded on acts of the 
government of some one of the States. 

With regard to the first of these classes, it is enough, for 
the present purpose, to notice that the Supreme Court has, 
with little or no difference of opinion, held that such claims 
cannot be sustained in any case. Though ruling that it 
had existed as a recognized belligerent military force, 1 or 
de facto government so far as military operations were in- 
volved, the court holds the legislative acts of the Confeder- 
ate government null and void. 2 

In support of this view, the court argues from the pro- 
hibition in the Constitution against any alliances or leagues 
between the States. 3 

In several cases of this class, it is also stated that this 
decision is not intended to apply at all to cases of claims 
founded on the acts of airy one of the States which had 
sustained the Confederacy. 4 

In the cases arising on claims founded on acts of the 
State governments, it has invariably been assumed that 
some acts of such State governments must be held valid, 
while others may have been void. 5 

i Hanauer v. Woodruff, 15 Wall. 439; Williams v. Bruffy, 6 Otto, 176. 

-' Thorington v. Smith, 8 Wall. 1,9; Delmas v. Ins. Co., 14 Wall. 65 ; 
Horn v. Lockhart, 17 Wall. 571 ; Dewing v. Perdicaries, 6 Otto, 193; Sprott 
v. United States, 20 Wall. 459; Williams v. Bruffy, 6 Otto, 176; also Short- 
ridge v. Macon, District N. C, Johnson's Chase's Decisions, 144 ; and 
Keppel's Adm'r v. Petersburg R. R., District Va. ib. 167. Unless there is 
an exception in a qualified recognition of the currency of the Confederate 
government, as valid, in payments and contracts, to a certain extent. Thor- 
ington v. Smith, 8 Wall. 1; Delmas v. Ins. Co., 14 Wall. 665; Hanauer v. 
Woodruff, 15 Wall. 439. The Confederate notes cases, 19 Wall. 548; 
Keppel's Adm'r v. Petersburg R. R., Johnson's Chase's Decisions, 210. 

3 " The organization whose enactment is pleaded cannot therefore be 
regarded in this court as having any lawful existence." (Opinion by Field, 
J., no dissent), Williams v. Bruffy, 6 Otto, 176, 182. 

4 United States v. Keehler, 9 Wall. 83 ; Home v. Lockhart, 17 Wall. 581 ; 
Williams v. Bruffy, 6 Otto, 1!»2. 

5 Horn v. Locidiart, 17 Wall. 570; United States v. Ins. Cos., 22 Wall. 
99; Sprott v. United States, 20 Wall. 459; with the other cases already 
cited. 



8 EXISTENCE OF THE STATES IN TJXION. 

Question of a Presumption. Texas v. White. 

In these cases, the salient question has generally been as 
to the existence of any presumption against the validity of 
any claim founded on the action of such government, aris- 
ing from the general facts of the rebellion and the position 
of such government, during the war and the so-called He- 
construction period. 

It is for the most part in reference to this presumption 
that those statements bearing on the political question 
above stated, as to the existence of the States, are made 
by various members of the court, from which, whether de- 
livered in the name of the majority or as individual dis- 
senting opinions, passages are here cited. 

In the case of Texas v. White, decided December term, 
1868, 7 Wall. 700, the question as to this presumption does 
not appear ; because, even admitting the presumption in 
favor of any act of the local authorities, the court con- 
sidered the alleged facts as showing that the transfer upon 
which the merits of the case depended had been made in 
aid of the rebellion. lb. 733. 

In this case of Texas v. White, suit was brought in 
the name of the State of Texas, by the government then 
existing under the State Constitution adopted in 1866 ; 
which was one of the State governments declared illegal 
by Congress, in the Acts of March 2, 1867, and July 19, 
1867. 1 

The object of the suit was to recover certain bonds trans- 
ferred by the local authorities during the rebellion. But 
a preliminary question of the jurisdiction of the court was 
raised by the objection, " that the State having severed her 
relations with a majority of the States of the Union, and 
having by her ordinance of secession attempted to throw 

1 A condensed narrative of the military and civil organizations which, up 
to the date of this case, had existed under the general policy pursued by 
Presidents Lincoln and Johnson is given by the reporter in his statement of 
the case. lb. 702-708. 



THEORY OF OUR NATIONAL EXISTENCE. 9 

Texas v. White. Opinion by the Chief Justice. 

off her allegiance to the Constitution and government of 
the United States, had so far changed her status as to be 
disabled from prosecuting suits in the national courts." 

Having stated the objection, Mr. Chief Justice Chase, 
delivering the opinion of the court, proceeds to say, — 

" If, therefore, it is true that the State of Texas was not at the 
time of filing this bill, or is not now, one of the United States, we 
have no jurisdiction of this suit, and it is our duty to dismiss it." 
lb. 719. 

From the frequent reference, with approval, which has 
been made to this opinion of the court, it should seem that, 
if any political doctrine, bearing on this point, can be 
got out of it by legal hermeneutics, it has been doctrine 
generally accepted by the national judiciary. 

Bearing in mind the question here considered by the 
court, it is important to know, with some precision, what 
idea the Chief Justice attached to the term a State. For 
this reason, I give here some passages not so often cited in 
later cases, but which may be noticed further on in this 
inquiry. 

The Chief Justice remarks, lb. 720, — 

" Some not unimportant aid, however, in ascertaining the true 
sense of the Constitution, may be derived from considering what is 
the correct idea of a State, apart from any union or confederation 
with other States. The poverty of language often compels the 
employment of terms in quite different significations ; and of this 
hardly any example more signal is to be found than in the use of 
the word we are now considering. It would serve no useful pur- 
pose to attempt an enumeration of all the various senses in which 
it is used. A few only need be noticed. 

" It describes sometimes a people or community of individuals 
united more or less closely in political relations, inhabiting tem- 
porarily or permanently the same country ; often it denotes only 
the country or territorial region, inhabited by such a community ; 
not unfrequently it is applied to the government under which the 



10 EXISTENCE OF THE STATE'S IN "UNION. 

Texas v. White. Definition of Word State. 

people live ; at other times it represents the combined idea of people, 
territory, and government. 

" It is not difficult to see that in all these senses the primary 
conception is that of a people or community. The people, in what- 
ever territory dwelling, either temporarily or permanently, and 
whether organized under a regular government, or united by looser 
and less definite relations, constitute the state. 

This is undoubtedly the fundamental idea upon which the repub- 
ican institutions of our own country are established. This was 
stated very clearly by an eminent judge 1 in one of the earliest 
cases adjudicated by this court, and we are not aware of any thing, 
in any subsequent decision, of a different tenor. 

" In the Constitution the term state frequently expresses the 
combined idea just noticed, of people, territory, and government. 
A state, in the ordinary sense of the Constitution, is a politi- 
cal community of free citizens, occupying a territory of defined 
boundaries, and organized under a government sanctioned and 
limited by a written constitution, and established by the con- 
sent of the governed. It is the union of such states under a 
common constitution which forms the distinct and greater political 
unit which that Constitution designates as the United States, and 
makes of the people and states which compose it one people and 
one country. 

" The use of the word in this sense hardly requires further re- 
mark. In the clauses which impose prohibitions upon the States 
in respect to the making of treaties, emitting of bills of credit, and 
laying duties of tonnage, and which guarantee to the States repre- 
sentation in the House of Representatives and in the Senate, are 
found some instances of this use in the Constitution. Others will 
occur to every mind. 

" But it is also used in its geographical sense, as in the clauses 
which require that a representative in Congress shall be an inhabi- 

1 Citing Penhallow v. Doane, 3 Dall. 93, in which Iredell, J., said : 
"A distinction was taken at the bar between a State and the people of the 
State. It is a distinction I am not capable of comprehending." He also 
speaks of " all the citizens which compose that State," meaning probably, 
not the persons holding the elective franchise, the political people, but 
the inhabitants generally ; as he says, " In such governments, therefore, the 
sovereignty resides in the great body of the people ... in their politic 
capacity only," and " the whole community which forms such body politic." 



THEORY OF OUR NATIONAL EXISTENCE. 11 

Texas v. White. Nature of the Union. 

tant of the State in which he shall be chosen, and that the trial of 
crimes shall be held in the State where committed. 

" And there are instances in which the principal sense of the 
word seems to be that primary one to which we have adverted, of a 
people or political community, as distinguished from a government. 

" In this latter sense, the word seems to be used in the clause 
which provides that the United States shall guarantee to every 
State in the Union a republican form of government, and shall 
protect each of them against invasion. 

" In this clause a plain distinction is made between a State and 
the government of a State. 

" Having thus ascertained the senses in which the word State 
is employed in the Constitution, we will proceed to consider the 
proper application of what has been said." 

The Chief Justice proceeds, lb. pp. 722-724, to describe 
the political transactions, in the State, intended to carry 
out the design of secession, and asks, lb. 724, — 

u Did Texas, in consequence of these acts, cease to be a State ? 
Or, if not, did the State cease to be a member of the Union ? 

" It is needless to discuss, at length, the question whether the 
right of a State to withdraw from the Union for any cause, re- 
garded by herself as sufficient, is consistent with the Constitution of 
the United States. 

" The Union of the States never was a purely artificial and 
arbitrary relation. It began among the Colonies, and grew out of 
common origin, mutual sympathies, kindred principles, similar inter- 
ests, and geographical relations. It was confirmed and strengthened 
by the necessities of war, and received definite form and character 
and sanction from the Articles of Confederation. By these the 
Union was solemnly declared to ' be perpetual.' And when these 
Articles were found to be inadequate to the exigencies of the coun- 
try, the Constitution was ordained ' to form a more perfect Union.' 
It is difficult to convey the idea of indissoluble unity more clearly 
than by these words. What can be indissoluble if a perpetual 
Union, made more perfect, is not. 

" But the perpetuity and indissolubility of the Union by no 
means implies the loss of distinct and individual existence, or of the 
right of self-government by the States. . . . And we have already 



12 EXISTENCE OF THE STATES IN UNION. 

Texas v. White. Texas continued a State. 

had occasion to remark, at this term, 1 that 'the people of each State 
compose a State, having its own government, and endowed with all 
the functions essential to separate and independent existence ; ' and 
that ' without the States in union, there could be no such political 
body as the United States.' Not only, therefore, can there be no loss 
of separate and independent autonomy to the States through their 
union under the Constitution ; but it may be not unreasonably said 
that the preservation of the States, and the maintenance of their 
governments, are as much within the design and care of the Con- 
stitution, as the preservation of the Union and the maintenance of 
the National government. The Constitution, in all its provisions, 
looks to an indestructible Union, composed of indestructible States. 

" When, therefore, Texas became one of the United States, she 
entered into an indissoluble relation. . . . There was no place for 
reconsideration or revocation, except through revolution, or through 
consent of the States. 

" Considered therefore as transactions under the Constitution, 
the ordinance of secession, adopted by the convention, and ratified 
by a majority of the citizens of Texas, and all the acts of her 
legislature intended to give effect to that ordinance, were abso- 
lutely null. They were utterly without operation in law. The 
obligations of the State, as a member of the Union, and of every 
citizen of the State, as a citizen of the United States, remained 
perfect and unimpaired. It certainly follows that the State did 
not cease to be a State, nor her citizens to be citizens of the Union. 
If this were otherwise, the State must have become foreign, and her 
citizens foreigners. The war must have ceased to be a war for the 
suppression of the rebellion, and must have become a war for con- 
quest and subjugation. 

" Our conclusion, therefore, is that Texas continued to be a 
State, and a State of the Union, notwithstanding the transactions 
to which we have referred. And this conclusion, in our judgment, 
is not in conflict with any act or declaration of any department of 
the National government, but entirely in accordance with the whole 
series of such acts and declarations since the first outbreak of the 
rebellion." 

While thus affirming the existence of the State as a con- 

i The County of Lane v. The State of Oregon, 7 Wall. 76. 



THEORY OF OUR NATIONAL EXISTENCE. 13 

Texas v. White. Position of the State Government. 

stituent member of the United States, the Chief Justice 
speaks of the existence of the State governments as a 
different matter. 

The opinion continues from the last citation : — 

" But in order to the exercise, by a State, of the right to sue in 
this court, there needs to be a State government, competent to rep- 
resent the State in its relations with the National government, so 
far, at least, as the institution and prosecution of a suit is con- 
cerned." 

The Chief Justice proceeds, lb. 727, to hold that " the 
governmental relations of Texas to the Union " did not 
remain "unaltered," and in his argument compares the 
States to citizens under the law of any one of the States : — 

" The obligations of allegiance to the State, and of obedience to 
her laws, subject to the Constitution of the United States, are bind- 
ing upon all citizens, whether faithful or unfaithful to them ; but 
the relations which subsist while these obligations are performed, 
are essentially different from those which arise when they are dis- 
regarded and set at nought. And the same must necessarily be 
true of the obligations and relations of States and citizens to the 
Union. . . . All admit that, during this condition of civil war, the 
rights of the State as a member, and of her people as citizens of 
the Union, were suspended. The government and the citizens of 
the State, refusing to recognize their constitutional obligations, as- 
sumed the character of enemies, and incurred the consequences of 
rebellion." 1 

The portion of the opinion which next follows, lb. 727- 
732, has a political interest, as being a recognition of the 
validity, if not the policy, of President Johnson's meas- 
ures in appointing provisional governors, and inaugurating 
new constitutions and State governments. But, consider- 
ing the action of the President as " provisional," the Chief 
Justice also justifies the action of Congress, in "the acts 

1 Other passages from this part of the opinion as cited by Mr. Justice 
Bradley, in Keith v. Clark, will be also found in this chapter. 



14 EXISTENCE OF THE STATES IN UNION. 

Texas v. White. Guaranty of Republican Government. 

known as the Reconstruction Acts," as founded on power 
derived from the constitutional guaranty of a republican 
government to each State. 

As to this portion of the opinion, it is of some importance 
to bear in mind Chief Justice Chase's previous definition of 
the word State, as employed in that guaranty ; under which 
he may, perhaps, have regarded Texas as a State only as 
any territory of the United States, with definite bounda- 
ries, might be called a State. 1 

In connection with this he says, in reference to the 
emancipation proclamation and the amendment prohibit- 
ing slavery, together with the conditions of amnesty, — 

" TVherever the National forces obtained control, the slaves be- 
came freemen. ... 

" The new freemen necessarily became part of the people, and 
the people still constituted the State ; for States, like individuals, 
retain their identity, though changed to some extent in their con- 
stituent elements. And it was the State, thus constituted, which was 
now entitled to the benefit of the constitutional guaranty." lb. 728. 

If the court, in this case, considered Texas as a proper 
subject for the benefit of the constitutional guaranty only 
as any territory, with sufficient population, may be entitled 
to the same, what is the value of the often cited expres- 
sion, " an indestructible Union composed of indestructible 
States"? 

If it was intended only to assert that Texas and its in- 
habitants had not become foreign country and alien nation, 
— this was something assumed by the government from 
the first, and was equally affirmed by those who would 
regard the States as conquered, and by the advocates of 
the State suicide doctrine. 

The merits of the case, as a claim for property, had not 
been considered in this portion of the opinion. The ma- 

1 Compare the dissenting opinion by Grier, J., post, p. 16. 



THEORY OF OUR NATIONAL EXISTENCE. 15 

Texas v. White. De facto Government. 

jority supported the claim of the State, as represented by 
the then existing government, to recover the bonds which 
had been transferred to the defendants, in 1865-66, by the 
local authorities supporting the Confederacy ; after the leg- 
islature had repealed an earlier State law restricting their 
assignment. In this part of the opinion, it is said, lb. 732, — 

" The legislature of Texas, at the time of the repeal, constituted 
one of the departments of a State government established in hos- 
tility to the Constitution of the United States. It cannot be re- 
garded, therefore, in the courts of the United States, as a lawful 
legislature, or its acts as lawful acts. And yet, it is an historical 
fact that the government of Texas, then in full control of the State, 
was its only actual government ; and certainly, if Texas had been 
a separate State, and not one of the United States, the new govern- 
ment having displaced the regular authority, and having estab- 
lished itself in the customary seats of power, and in the exercise of 
the ordinary functions of administration, would have constituted, in 
the strictest sense of the words, a de facto government, and its acts, 
during the whole period of its existence, as such, would be effectual, 
and, in almost all respects, valid. And, to some extent, this is true 
of the actual government of Texas, though unlawful and revolu- 
tionary, as to the United States. 

" It is not necessary to attempt any exact definitions, within 
which the acts of such a State government must be treated as valid 
or invalid." 

The opinion briefly states that, while action affecting 
ordinary civil relations is, generally speaking, valid, in 
this particular case, the " purpose " of the act of the local 
legislature authorizing the sale, " was undoubtedly unlaw- 
ful, for the acts which it contemplated are, within the express 
definition of the Constitution, treasonable." lb. 733. 

The opinion concludes, — 

"On the whole case, therefore, our conclusion is, that the State 
of Texas is entitled to the relief sought by her bill, and a decree 
must be made accordingly." lb. 736. 

Notwithstanding the length of these citations from the 



16 EXISTENCE OF THE STATES IN UNION. 

Texas v. White. Dissenting Opinions. 

opinion of the court, the positions taken by three of its 
members are too important, in the political aspect, not 
to be here noticed, on their own account and as elucidat- 
ing, by contrast, the opinion delivered by Chase, C. J. 
Mr. Justice Grier dissented, both as to the question of 
jurisdiction and that on the merits. In the separate opin- 
ion delivered by him, he observes : — 

" The original jurisdiction of this court can be invoked only by 
one of the United States. The Territories have no such right con- 
ferred on them by the Constitution, nor have the Indian tribes who 
are under the protection of the military authorities of the govern- 
ment. 

" Is Texas one of these United States ? Or was she such at the 
time this bill was filed, or since ? 

" This is to be decided as a 'political fact, not as a legal fiction. 
This court is bound to know and notice the public history of the 
nation." lb. 737. 

Mr. Justice Grier cited here the language of Marshall, 
C. J., in Hepburn v. Elzey, 2 Cranch, 452, as to what 
constitutes a State of the United States, 1 as against the 
view of a State contended for by counsel, and supported 
apparently in the opinion of the court, and says of the 
political situation at that time, — 

"It is true that no organized rebellion now exists there, and the 
courts of the United States now exercise jurisdiction over the peo- 
ple of that province. But this is no test of the State's being in the 
Union ; Dacotah is no State, and yet the courts of the United 
States administer justice there as thev do in Texas. The Indian 
tribes who are governed by military force cannot claim to be States 
of the Union. Wherein does the condition of Texas differ from 
theirs?" lb. 788. 

Mr. Justice Grier protested against any charge of incon- 
sistency with his previous judicial opinions, referring his 

• 1 The same view had been taken in Scott v. Jones, 5 How. 843, 877 ; 
Cherokee Nation v. Georgia, 5 Pet. 118. 



THEORY OF OUR NATIONAL EXISTENCE. 17 

Texas v. White. Opinion of Grier, J. 

conclusion in this case to his acquiescence in the position 
taken by the government. 

<k I do not consider myself bound to express any opinion, judi- 
cially, as to the constitutional rights of Texas to exercise the rights 
and privileges of a State of this Union, or the power of Congress 
to govern her as a conquered province, to subject her to military 
domination and keep her in pupilage. I can only submit to the 
fact as decided by the political position of the government, and I 
am not disposed to join in any essay to prove Texas to be a State 
of the Union, when Congress have decided that she is not. It is 
a question of fact, I repeat, and of fact only. Politically, Texas is 
not a State in this Union. Whether rightfully out of it or not, is 
a question not before the court." lb. 739. 

These remarks are addressed to the question of jurisdic- 
tion. But, on the question of right of recovery, Judge 
Grier also dissented. In this connection, he said, — 

" Having relied upon one fiction, namely, that she is a State in 
the Union, she now relies upon a second one, which she wishes the 
court to adopt, that she was not a State at all during the five years 
that she was in rebellion. She now sets up the plea of insanity, 
and asks the court to treat all her acts made during the disease as 
void. 

" We have had some very astute logic to prove that, judicially, 
she was not a State at all, although governed by her own legisla- 
ture and executive as ' a distinct political body.' 

" The ordinance of secession was adopted by the convention, on 
the 18th of February, 1861 ; submitted to a vote of the people and 
ratified by an overwhelming majority. I admit that this was a very 
ill-advised measure. Still it was the sovereign act of a sovereign 
State, and the verdict on the trial of this question ' by battle,' * as 

1 In the foot-note, Prize Cases, 2 Black. 673. The opinion of the court 
in that case had been delivered by Mr. Justice Grier, and, from his lan- 
guage in that instance, it must be inferred that he held that view of the 
Union which regards each State as always being completely and severally 
sovereign, and the war as an international war throughout. His expressions, 
in Texas v. White, must be understood as in harmony with the same doctrine, 
and it must be supposed that he regarded the State as territory, held by con- 
quest. 



18 EXISTENCE OE THE STATES IN UNION. 

Texas v. "White. Positions of Swayne and Miller, JJ. 

to her right to secede, has been against her. But that verdict did 
not settle any question not involved in the case. 1 It did not settle 
the question of her right to plead insanity," &c. lb. 740. 

Mr. Justice Swayne said only, 2 — 

a I concur with my brother Grier as to the incapacity of the 
State of Texas, in her present condition, to maintain an original 
suit in this court. The question, in my judgment, is one in relation 
to which this court is bound by the action of the legislative depart- 
ment of the government. 

" Upon the merits of the case, I agree with the majority of my 
brethren. 

" I am authorized to say that my brother Miller unites with me 
in these views." lb. 741. 

In White v. Hart, 13 Wall. 646, the question of the ca- 
pacity of a State, as affected by the rebellion, was pre- 
sented, in an aspect still more clearly political, by the 
opinion of the court, delivered by Mr. Justice Swayne, 
who, in his statement of the case, says, lb. 648, — 

" From the close of the rebellion until Georgia was restored to 
her normal relations and functions in the Union, she was governed 
under the laws of the United States known as the Reconstruction 
Acts. Under these laws her present constitution was framed, 
adopted, and submitted to Congress." 

After recapitulating the " terms of her rehabilitation " 
requiring the modification of this constitution, under the 
measures of Congress ending in the Act July 15, 1870 (16 
U. S.Stat. 363), he says,— 

" This act removed the last of the disabilities and penalties which 
were visited upon her for her share of the guilt of the rebellion. 

1 I suppose Mr. Justice Grier to have meant, — not involved in that 
issue, viz., whether the State had, or had not, the right to secede. 

- It is specially important to notice the position taken in this case by 
Justices Swayne and Miller, because they severally delivered the opinion of 
the court in the two later cases, from which I propose to cite very fully, 
White v. Hart, and Keith v. Clark. 



THEORY OF OUR NATIONAL EXISTENCE. 19 

White v. Hart. Opinion of the Court. 

The condonation by the national government thus became com- 
plete." lb. 648. 

In this case, the question presented was as to the pro- 
tection of a contract made in 1859 against a provision in 
the State constitution of Georgia of 1868, against enforc- 
ing " any debt, the consideration of which was a slave or 
the hire thereof." 

The point was taken — that the clause in the Constitu- 
tion of the United States against impairing the obligation 
of contracts did not apply, — 

Because, as a " first proposition," at the adoption of this 
state constitution, " Georgia was not a State of the Union ; 
that she had sundered her connection as such, and was 
a conquered territory, wholly at the mercy of the con- 
queror." 

And because, as a " third proposition," her constitution 
was adopted under the dictation and coercion of Congress," 
so that the prohibition in the State constitution was valid, 
as being the action of Congress. lb. 649. 

As to the last of these propositions, the court says, — 

" The third of these propositions is clearly unsound, and requires 
only a few remarks. Congress authorized the State to frame a new- 
constitution, and she elected to proceed within the scope of the au- 
thority conferred. The result was submitted to Congress as a vol- 
untary and valid offering, and was so received and so recognized in 
the subsequent action of that body. The State is estopped to assail 
it upon such an assumption. Upon the same grounds she might 
deny the validity of her ratification of the constitutional amend- 
ments. The action of Congress upon the subject cannot be in- 
quired into. The case is clearly one in which the judicial is bound 
to follow the action of the political department of the government, 
and is concluded by it." lb. 649. 1 

1 A note in the report refers to the cases cited, ante, p. 5, note. 

Here the court, as I understand it, only assumes that Congress must have 
had sufficient evidence. Further on it seems to be held that the court is 
obliged to accept any view of the status of the States taken by Congress. I 



20 EXISTENCE OF THE STATES IN UNION. 

White v. Hart. Opinion by Swayne, J. 

The view of the nature of the States and the Union, con- 
tained in the opinion of the court, is particularly notice- 
able for being presented as in harmony with the views of 
Congress in the Reconstruction Acts. The court says, 
lb. 649,— 

" The subject presented by the first proposition has been consid- 
ered, under some of its aspects, several times by this court. We 
need do little more upon this occasion than to reaffirm the views 
heretofore expressed, and add such further remarks as are called 
for by the exigencies of the case before us. 

" The National Constitution was, as its preamble recites, ordained 
and established by the people of the United States. It created, not 
a confederacy of States, but a government of individuals. It as- 
sumed that the government and the Union which it created, and the 
States which were incorporated into the Union, would be indestruc- 
tible and perpetual ; and, as far as human means could accomplish 
such a work, it intended to make them so. . . . For all the pur- 
poses of the National government, the people of the United States 
are an integral, and not a composite mass, and their unity and iden- 
tity, in this view of the subject, are not affected by their segrega- 
tion by State lines, for the purposes of State government and local 
administration. Considered in this connection, the States are or- 
ganisms for the performance of their appropriate functions in the 
vital system of the larger polity, of which, in this aspect of the sub- 
ject, they form a part, and which would perish if they were stricken 
from existence and ceased to perform their allotted work. The 
doctrine of secession is a doctrine of treason. ... In some respects 
it [the rebellion] was not unlike the insurrection of a county or 
other municipal division of territory against the State to which it 
belongs. . . . 

" The power exercised in putting down the late rebellion is given 
expressly by the Constitution to Congress. That body made the 

have, ante, p. 5, recognized a limitation of the judicial function on the politi- 
cal question : but not meaning to the extent that all political action of the 
legislature is binding on the court. The recognition of a" political depart- 
ment " determining the nature of the constitutional government for the judi- 
ciary, is, I think, a novelty. The boast used to be that the court was the 
superior, or, at least, independent. Comp. Story Coram, ch. 38. 



THEORY OF OUR NATIONAL EXISTENCE. 21 

White v. Hart. Opinion of the Court. 

laws, and the President executed them. The granted power car- 
ried with it not only the right to use the requisite means, but it 
reached farther, and carried with it also authority to guard against 
the renewal of the conflict, and to remedy the evils arising from it ; 
so far as they could be effected by appropriate legislation. 1 At no 
time were the rebellious States out of the pale of the Union. Their 
rights under the Constitution were suspended, but not destroyed. 
Their constitutional duties and obligations were unaffected, and re- 
mained the same. A citizen is still a citizen, though guilty of 
crime and visited with punishment. His political rights may be 
put in abeyance or forfeited. The result depends upon the rule, as 
defined in the law, of the sovereign against whom he has offended. 
If he lose his rights, he escapes none of his disabilities and liabili- 
ties which before subsisted. Certainly he can have no new rights 
or immunities arising from his crime. These analogies of the 
county and the citizen are not inapplicable, by way of illustration, 
to the condition of the rebel States, during the rebellion. The leg- 
islation of Congress shows that these were the views entertained by 
that department of the government." lb. 651. 

The opinion notices the Reconstruction Acts as avoiding 
the phraseology employed when new States are declared 
"admitted into the Union," but reading, in distinction, 
the said State " shall be entitled and admitted to repre- 
sentation in Congress, as a State in the Union," &c, and 
proceeds, — 

" The different language employed in the two classes of cases 
evinces clearly that, in the judgment of Congress, the reconstructed 
States had not been out of the Union, and that to bring them back 
into full communion with the loyal States, nothing was necessary 
but to permit them to restore their representation in Congress. 
Without reference to this element of the case, we should have come 
to the same conclusion. But the fact is one of great weight in the 
consideration of the subject, and we think it conclusive upon the 

1 The foot-note for this paragraph is Stewart v. Kahn, 11 Wall. 506, in 
which case the opinion was delivered by Mr. Justice Swayne. But the 
propositions on the page cited are hardly equal, in political significance, to 
the rather remarkable statement for which it is here referred to. 



22 EXISTENCE OF THE STATES EST "UNION. 

Keith v. Clark. Opinion of the Court. 

judicial department of the government." lb. citing Luther v. Bor- 
den, 7 How. 57. 1 

A disagreement as to the presumption in favor of the 
validity of the acts of the governments of the States com- 
promised by the rebellion, appears in the case of Keith v. 
Clark, 7 Otto, 454, decided October Term, 1878. 

In the opinions delivered for the majority and in those 
of the three dissenting Justices, the position of the State 
governments from the commencement of the rebellion, 
onwards, is examined at greater length, and with exhibi- 
tion of greater variety of political doctrine, than in any 
former case. This may justify a somewhat extended cita- 
tion from each opinion. 

In this case the plaintiff had sued the defendant in the 
State courts for the sum of $40, which he had paid, under 
protest, to the defendant, a collector of taxes for the State 
of Tennessee, after he had tendered, in payment for that 
amount of tax due, the same sum in the circulating notes 
of the State Bank of Tennessee, which had been issued 
'after May 6, 1861. 

Mr. Justice Miller, delivering the opinion of the court, 2 
proceeds to consider the question of the effect of the civil 
war on the contract, as to notes issued subsequently to 
May 6, 1861. 

" We are invited now to examine that point and to hold that as to 
all such notes the 12th section creates no valid contract." lb. 457. 

" In entering upon this inquiry, we start with the proposition, that 
unless there is something in the relations of the State of Tennessee 
and the bank, after the date mentioned, to the government of the 

1 Mr. Chief Justice Chase dissented from the decision of the majority, 
giving the ground of his opinion in Osborn v. Nicholson, lb. 655, 663, that 
contracts for sale of slaves were contrary to public policy. He did not 
allude to the political question. 

2 The opinion of the court has been given in the Eeporter, vol. vii. 
Weekly No. Jan. 29, 1879. 



THEORY OF OUR NATIONAL EXISTENCE. 23 

Miller, J., delivers Opinion of the Court. 

United States, or something in the circumstances under which the 
notes now sued on were issued, that will repel the presumption of a 
contract under the 12th section, or will take the contract out of the 
operation of the protecting clause of the Federal Constitution ; this 
court has established already that there was a valid contract to re- 
ceive them for taxes, and that the law which forbade this to be done 
is unconstitutional and void. 

" Those who assert the exception of these notes from the general 
proposition are not very well agreed as to the reasons on which it 
shall rest, and we must confess that, as they are presented to us, 
they are somewhat vague and shadowy. They may all, however, 
as far as we understand them, be classed under three principal 
heads. 

" 1. The first is to us an entirely new proposition, urged with 
much earnestness by the counsel who argued the case orally for the 
defendant. 

" It is, in substance, that what was called the State of Tennessee 
prior to the 6th May, 1861, became, by the ordinance of secession 
passed on that day, subdivided into two distinct political entities, 
each of which was a State of Tennessee. One of them was loyal 
to the Federal government, the other was engaged • in rebellion 
against it. One State was composed of the minority who did not 
favor secession, the other of the majority who did. That these two 
States of Tennessee engaged in a public war against each other, to 
which all the legal relations, rights, and obligations of a public war 
attached. That the government of the United States was the ally 
of the loyal State of Tennessee and the confederated rebel States 
were the allies of the disloyal State of Tennessee. That the loyal 
State of Tennessee, with the aid of her ally, conquered and sub- 
jugated the disloyal State of Tennessee, and by right of conquest 
imposed upon the latter such measure of punishment and such sys- 
tem of law as it chose, and that by the law of conquest it had the 
right to do this. That one of the laws so imposed by the conquer- 
ing State of Tennessee on the conquered State of Tennessee was 
this one, declaring that the issues of the bank during the temporary 
control of affairs by the rebellious State was to be held void ; and 
that, as conqueror and by right of conquest, the loyal State had 
power to enact this as a valid law. 

" It is a sufficient answer to this fanciful theory, that the division 



24 EXISTENCE OF THE STATES IN UNION.' 

Opinion of the Court. Keith v. Clark. 

of the State into two States never had any actual existence ; that, 
as we shall show hereafter, there has never been but one political 
society in existence as an organized State of Tennessee, from the day 
of its admission to the Union in 1796 to the present time. That it 
is a mere chimera to assert that one State of Tennessee conquered 
by force of arms another State of Tennessee, and imposed laws 
upon it; and finally, that the logical legerdemain by which the 
State goes into rebellion, and makes, while thus situated, contracts 
for the support of the government in its ordinary and usual func- 
tions, which are necessary to the existence of social life, and then, 
by reason of being conquered, repudiates these contracts, is as hard 
to understand as similar physical performances on the stage." 

Mr. Justice Miller, next considers the second proposition, 
which had been advanced, and which he thus sets forth, — 

" 2. The second proposition is a modification of this, and deserves 
more serious attention. It is, as we understand it, that each of the 
eleven States who passed ordinances of secession and joined the so- 
called Confederate States so far succeeded in their attempt to sepa- 
rate themselves from the federal government that, during the period 
in which the rebellion maintained its organization, those States were 
in fact no longer a part of the Union, or, if so, the individual States, 
by reason of their rebellious attitude, were mere usurping powers, 
all of whose acts of legislation or administration are void, except as 
they are ratified by positive laws enacted since the restoration, or 
are recognized as valid on the principles of comity or sufferance. 

" We cannot agree to this doctrine. It is opposed by the inher- 
ent powers which attach to every organized political society pos- 
sessed of the right of self-government ; it is opposed to the recognized 
principles of public international law ; and it is opposed to the well- 
considered decisions of this court. ' ISations or States,' says Yattel, 
' are bodies politic,' &c" 

The opinion proceeds, ib. 459, 460, at some length, mak- 
ing quotations from Vattel, Cicero, Wheaton, as to the 
existence of nations, or states in the same sense, and re- 
ferring to England and France during periods of revolu- 
tionary change of dynasty, as affording some parallel for 
the case before the court ; saying, in continuation, — 



THEORY OF OUR NATIONAL EXISTENCE. 25 

Miller, J. Opinion of the Court. 

"The political society which in 1796 became a State of the 
Union, by the name of the State of Tennessee, is the same which 
is now represented as one of those States in the Congress of the 
United States. Not ouly is it the same body politic now ; but it 
has always been the same. There has been perpetual succession 
and perpetual identity. There has from that time always been a 
State of Tennessee, and the same State of Tennessee. Its execu- 
tive, its legislative, its judicial departments have continued without 
interruption and in regular order. It has changed, modified, and 
reconstructed its organic law, or State constitution, more than once. 
It has done this, before the rebellion, during the rebellion, and 
since the rebellion. And it was always done by the collective au- 
thority and in the name of the same body of people constituting 
the political society known as the State of Tennessee. 

h This political body has not only been all this time a State, and 
the same State, but it has always been one of the United States — 
a State of the Union. Under the Constitution of the United States, 
by virtue of which Tennessee was born into the family of States, 
she had no lawful power to depart from that Union. The effort 
which she made to do so, if it had been successful, would have been 
so in spite of the Constitution, by reason of that force which in 
many other instances establishes for itself a status, which must be 
recognized as a fact, without reference to any question of right, and 
which in this case would have been, to the extent of its success, a 
destruction of that Constitution. Failing to do this, the State re- 
mained a State of the Union. She never escaped the obligations 
of that Constitution, though for a while she may have evaded their 
enforcement." 

The opinion here cites the decision in Texas v. White, 
and an extract from Chief Justice Chase's opinion, herein 
already given, ante, p. 12, and from the language used by 
Mr. Justice Swayne, in White v. Hart, ante p. 21, with his 
argument from the Reconstruction acts, adding, — 

" These cases, and especially that of Texas v. White, have been 
repeatedly cited in this court with approval, and the doctrine they 
assert, 1 must be considered as established, in this forum at least." 
lb. 462. 

1 As I have read those opinions they agree only in using the same verbal 
formula, — that the eleven States have always been States of the Union 



26 EXISTENCE OF THE STATES IN UNION. 

Keith v. Clark. Opinion of the Court. 

As to reasons coroing under the third head for excluding 
these notes from the "-general proposition," Mr. Justice 
Miller, in the opinion, says, lb. 463, — 

" 3. The third proposition on which the judgment of the courts 
of Tennessee is supported is, that the notes on which the action is 
brought were issued in aid of the rebellion, to support the insurrec- 
tion against the lawful authority of the United States, and are there- 
fore void for all purposes. 

" The principle stated in this proposition, if the facts of the case 
come within it, is one which has repeatedly been discussed by this 
court. The decisions establish the doctrine that no promise or 
contract, the consideration of which was something done or to be 
done by the promisee, the purpose of which was to aid the war of 
the rebellion, or give aid and comfort to the enemies of the United 
States in the prosecution of that war, is a valid promise or contract, 
by reason of the turpitude of the consideration." x lb. 464. 

The doctrine of the court on this point is only such as 
must of necessity be maintained by the judiciary under 
any view of the nature of the Union which excludes the 
right of State secession and justifies the action of the gov- 
ernment in resisting the effort to maintain it. As to this, 
there could be no disagreement in the court. In the con- 
clusion of the opinion, it is stated, — 

" There is, however, nothing in the case before us to warrant the 
conclusion that these notes were issued for the purpose of aiding 
the rebellion, or in violation of the laws or the Constitution of the 
United States. There is no plea of that kind in the record. No 
such question was submitted to the jury which tried the case. . . . 
We cannot infer, then, that these notes were issued in violation of 

But which doctrine does Mr. Justice Miller take as established? that of 
Chief Justice Chase — that they continued States, as any certain territory 
and inhabitants constitute a State of the United States? or that of Mr. Jus- 
tice Swayne, — that they continued States, as political personalities subject 
to a sovereign general government ? 

1 The cases cited are Texas v. "White, 7 Wall. 700, 733 ; Hanauer v. 
Doane, 12 Wall. 345 ; Horn v. Lockhart, 17 Wall. 570 ; Sprott v. United 
States, 20 Wall. 459 ; Williams v. Bruffy, 6 Otto, 176. 



THEORY OF OUR NATIONAL EXISTENCE. 27 

Keith v. Clark. Waite, Ch. J., dissenting. 

any federal authority. On the other hand, if the fact be so, nothing 
can be easier than to plead it and prove it. . . . To undertake to 
assume the facts which are necessary to their invalidity on this record 
is to give to conjecture the place of proof, and to rest a judgment of 
the utmost importance on the existence of facts not found in the 
record, nor proved by any evidence of which this court can take 
judicial notice." lb. 4G6. 

The decision of the majority was, to reverse the deci- 
sions of the courts below, on the ground that the original 
contract of the State with the bill-holders was protected 
by the clause in the Constitution against impairing con- 
tracts by State laws. lb. 466. 

From this judgment Waite, Chief Justice, and Bradley 
and Harlan, Justices, dissented, each delivering an opinion. 

The reasons given by the Chief Justice for his dissent, 
lb. 467, are founded on reasons of the third class, as dis- 
criminated in the opinion of the court, without any consid- 
eration of the position of the State government in respect 
to the people of the State, or the position of the State as a 
member of the Union. The Chief Justice argued that, 
from the State's constitutional amendment of June 26, 
1865, declaring null and void all issues by the Bank, after 
May 6, 1861, and from the judgment rendered by the 
highest court of the State against the validity of the tender 
in this case, the presumption is, that the notes were issued 
in aid of the rebellion, and the plaintiff was then required 
to overcome a, prima facie case against him. 

Mr. Justice Harlan bases his dissent more on political 
considerations, harmonizing with the arguments referred to 
in the opinion of the court under the first head, as to the 
general invalidity of the acts of those who exercised the 
powers of government in Tennessee during the war. 
lb. 479. 

" It was because the State, through directors of its own* appoint- 
ment, had the absolute control of the operations of the bank, owning 



28 EXISTENCE OF THE STATES IN UNION. 

Keith v. Clark. Opinion of Harlan, J., dissenting. 

its capital and enjoying its profits, that it made the agreement con- 
tained in the 12th section of the charter. . . . But it is to be ob- 
served that the State which made this contract with note-holders 
was the State which was represented by the lawful government 
thereof. ... It was not an agreement to receive notes issued under 
the orders of usurping directors, or by directors appointed by, or 
exercising their functions under, any revolutionary government, 
which, by violence, should displace the lawful government of the 
State. Upon the temporary overthrow of the latter government, 
on the 6th of May, 1861, all the State institutions, including the 
Bank of Tennessee, were seized by the usurping government. . . . 
And this view does no injustice to citizens of Tennessee who re- 
ceived the notes of the bank in the ordinary course of business. 
They were aware of the fact that these notes were issued under rev- 
olutionary authority. They did not take them upon the credit of 
the lawful government, or upon any faith they had in its restora- 
tion. They took them upon the credit of the usurping State gov- 
ernment, under whose authority and for whose benefit they were 
issued, and which government, at that time, was regarded by the 
mass of the people of Tennessee, as established upon a permanent 
and enduring foundation." . . . 

Mr. Justice Harlan further holds, lb. 481, that — 

. . . " it is immaterial whether the notes were or were not issued 
in direct aid of the rebellion. They were the obligations of an insti- 
tution controlled and managed by a revolutionary usurping govern- 
ment, in its name, for its benefit, and to prevent the restoration of 
the lawful State government. It was that revolutionary govern- 
ment which undertook to withdraw the State of Tennessee from its 
allegiance to the Federal government, and make it one of the Con- 
federate States. "When, therefore, the people of Tennessee, who 
recognized the authority of the United States, assembled by their 
delegates in convention in January, 1865," &c. 

After allowing that some acts of the usurping govern- 
ment may be held valid, Mr. Justice Harlan says, 
lb. 483,— 

" Tennessee, as one of the United States, cannot be under a con- 
stitutional duty to recognize the governmental obligations of those 



THEORY OF OUR NATIONAL EXISTENCE. 29 

Keith v. Clark. Opinion of Bradley, J., dissenting. 

who, by revolution, and in violation of the Federal Constitution, 
overthrew the legitimate State government, not because of its ad- 
ministration of the internal affairs of that State, but solely because 
of its adherence to the Federal Union, and its refusal to acknowl- 
edge the authority of the Confederate government," &c. 

According to the view taken by Mr. Justice Harlan, it 
was the State of Tennessee, as a member of the Union, 
which had suffered usurpation of its government by some 
persons not identical with the people of the State. 

In the opinion delivered by Mr. Justice Bradley, the 
State governments of the war period are also designated 
" usurping governments." But a somewhat different view 
seems to have been taken, either of the person usurping, 
or of the nature and proper place of the power usurped. 
The opinion is stated at such length, that only the most 
material passages, relative to this view, can here be 
given. 

Judge Bradley presents the question as follows, lb. 
472,— 

" In favor of the proposition that the lawful State government, 
reorganized after the rebellion, is bound to recognize the bills in 
question, it is contended that the State of Tennessee has always 
remained the same State ; and that, unless it can be shown affirma- 
tively that its acts and proceedings were intended to aid the prose- 
cution of the rebellion, they are all valid and binding on the 
reconstructed State. 

" The latter proposition I deny. The State can act only by its 
constituted authorities, — in other words, by its government ; and if 
that government is a usurping and illegal government, the State 
itself and the legal government which takes the place of the usurp- 
ing government, are not bound by its acts. ... lb. 474. 

" I deny the assumption that the governments of the insurgent 
States were lawful governments. I believe, and hold, that they 
were usurping governments. I understand this to have been the 
opinion of the court in Texas v. White, 7 Wall. 700. The very 
argument in that case is, that whilst the State, as a community of 
people, remained a State rightfully belonging to the United States, 



30 EXISTENCE OF THE STATES IN UNION. 

Keith v. Clark. Opinion of Bradley, J., dissenting. 

the government of the State had passed into relations entirely ab- 
normal to the conditions of its constitutional existence. ' When 
the war closed,' says Mr. Chief Justice Chase, speaking for the 
court, 1 ' there was no government in the State except that which 
had been organized for the purpose of waging war against the 
United States. That government immediately disappeared. The 
chief functionaries left the State. Many of the subordinate officers 
followed their example. Legal responsibilities were annulled or 
greatly impaired.' Again he says, ' There being, then, no govern- 
ment in Texas in constitutional relations with the Union, it became 
the duty of the United States to provide for the restoration of such 
government.' Again, in speaking of the power and duty of Con- 
gress to guarantee to each State a republican government, and the 
necessary right which follows therefrom, to decide what government 
is established in each State, the Chief Justice makes the following 
quotation from the opinion of Mr. Chief Justice Taney, in the case 
of Luther v. Borden, 7 How. 1. . . . 

" Mr. Chief Justice Chase proceeds to say, ' This is the language of 
the late Chief Justice, speaking for this court, in a case from Rhode 
Island, arising from the organization of opposing governments in 
that State. And we think that the principle sanctioned by it may 
be applied, with even more propriety, in the case of a State de- 
prived of all rightful government by revolutionary violence, though 
necessarily limited to cases where the rightful government is thus 
subverted, or in imminent danger of being overthrown by an op- 
posing government, set up by force within the State.' " 

From the citation of these parts of Chief Justice Chase's 
opinion, and particularly of that relying on the Rhode Is- 
land case, it would seem that, in Mr. Justice Bradley's con- 
ception of the usurpation, it was usurpation as against the 
State, or people of a State, — a loyal State, a loyal people of 
a State, or at least a politically not-guilty-of-any-thing-in- 
particular State, or people of a State. 

But, from the passages immediately following in the opin- 
ion, it might be inferred that the usurpation had rather been 

1 The passage cited is 7 "Wall. 728. See ante, p. 13, note. 



THEORY OF OUR NATIONAL EXISTENCE. 31 

Keith v. Clark. Bradley, J., dissenting. 

against the government of the United States, without ref- 
erence to State organization, and that the powers usurped 
were those ordinarily exercised by the general government, 
in and for the United States generally, — 

" The actual course of things taken in the seceding States, so 
fully detailed by the Chief Justice in Texas v. White, are demon- 
strative, it seems to me, of the position which I have assumed. The 
several State governments existing or newly organized at the times 
when the ordinances of secession were respectively adopted, as- 
sumed all the branches of sovereignty belonging to the Federal gov- 
ernment. The right to declare war, &c. . . . were usurped by the 
said State governments, either singly, or in concert and confederacy 
with the others. They assumed to sever the connection between their 
respective communities and the government of the United States, 
and to exercise the just powers belonging to that government. 
That such governments should be denominated legal State gov- 
ernments in this country where the Constitution of the United States 
is and ought to be the supreme law of the land, seems to be most 
remarkable. The proposition assumes that the connection between 
the States and the general government is a mere bargain or con- 
tract, which, if broken, — though unlawfully broken, — still leaves 
the States in rightful possession of all their pristine autonomy and 
authority as States. 

" I do not so read the constitution of government under which we 
live. Our government is a mixed government, — partly state, partly 
national. The people of the United States, as one great political 
community, have willed that a certain portion of the government 
. . . should be deposited in and exercised by a national government ; 
and that all matters of merely local interest should be deposited in 
and exercised by the State governments. This division of gov- 
ernmental powers is fundamental and organic. It is not merely a 
bargain between States. It is part of our fundamental political 
organization. Any State attempting to violate this constitution of 
things not only breaks the fundamental law, but, if it establishes a 
government in conformity with its views, that government is a usurp- 
ing government, — a revolutionary government, — as much so as 
would be an independent government set up by any particular 
county in a State. . . . 



32 EXISTENCE OF THE STATES IN" UNION. 

Keith v. Clark. Bradley, J., dissenting. 

" I do not mean to say that States are mere counties or provinces. 1 
But I do mean to say that the political relation of the people of the 
several States to the Constitution and government of the United 
States is such, that if a State government attempt to sever that 
relation, and if it actually sever it by assuming and exercising the 
functions of the Federal government, it becomes a usurping gov- 
ernment. 

" We have always held, it is true, that, in the interests of order 
and for the promotion of justice, the courts ought to regard as 
valid all those acts of the State governments which were received 
and observed as laws for the government of the people in their re- 
lations with each other, so far as it can be done without recognizing 
and confirming what was actually done in aid of the rebellion." 
lb. 476. 

But Mr. Justice Bradley does not explain how the courts 
are to apply this, either by admitting or denying a presump- 
tion in favor or against the acts of such governments in cases 
before them ; and, from the remainder of the opinion, it 
would appear that he considered it rather a political ques- 
tion, and that all claims of right resting on the action of 
the State government during the war were dependent on 
some ratification by the new " lawful State governments." 

He says, lb. 478, — 

" It is undoubtedly true that, when revolutions in governments 
occur, the new governments do often, as matter of policy, and to 
prevent individual distress among the citizens, assume the obliga- 
tions of the governments to which they succeed. But this is done 
from motives of public policy only, and is not submitted to as a 
matter of absolute right. Such was clearly the relation of the 
lawful State governments to the obligations of the usurping govern- 
ments at the close of the civil war in this country. They could 
assume them or not as they saw fit." 

In this connection, he refers to the repudiation of these 
claims in the State Constitution of 1865. 

1 This portion of Mr. Justice Bradley's opinion savors more of Mr. Jus- 
tice Swayne than of Mr. Chief Justice Chase. Compare, ante, p. 21. 



THEOEY OF OUR NATIONAL EXISTENCE. 33 

Keith v. Clark. Bradley, J., dissenting. 

But it is not necessary to cite from this portion of the 
opinion, as I have not proposed to consider any particular 
application of the legal principle, further than may be a 
means of deriving some political doctrine of the position 
of the States. In which respect, however, the following 
passages, in conclusion, are important : — 

" Whether the community of people constituting the several 
States remained States during the insurrection is of no consequence 
to the argument. The question is, whether the State governments 
were or were not legal governments, and whether the obligations 
by them assumed are binding upon the lawful government of the 
State. 

" That the acts of secession were void, of course no one denies. 
The civil war was carried on by the United States to demonstrate 
their nullity. But neither has that any thing to do with the ques- 
tion as to the validity of the State governments which waged war 
against the United States ; except to make it more certain and in- 
dubitable that they were usurping governments." lb. 478. 

Mr. Justice Bradley adds in concluding his opinion, — 

" It seems to me, that the attempt to fasten upon the lawful gov- 
ernment of Tennessee, an obligation to receive, as cash, bills that 
were issued under the authority of the usurping government of that 
State, whilst it was engaged in a deadly war against the govern- 
ment of the United States, is calculated to introduce evils of great 
magnitude ; that it will ultimately lead to the recognition of the 
war debts of the seceding States, notwithstanding the prohibition 
of the XlVth amendment of the Constitution. But this I would 
regard as a far less evil than the establishment of doctrines at war, 
as I think, with the true principles of our national government, as 
well as with the established rules of public law." 

As it was assumed in beginning this inquiry that, to as- 
certain what political authority had been maintained by 
the victorious belligerent, it was necessary to look at the 
action of the government representing that belligerent, in 
the exercise of its several functions, the only judicial opin- 
ions which it is important to consider are those of the 



34 EXISTENCE OF THE STATES IN UNION. 

State Courts on the Lawfulness of their Governments. 

national judiciary. It would only be matter of curiosity, 
then, in strict consistency, to learn the opinions held by the 
present courts of the eleven States of the Confederacy, 
as to the lawfulness of the governments of their respective 
States during the period which was referred to by the 
Supreme Court in the cases which have been cited. 1 

Although it is here assumed that the determination of 
political doctrine is not within the sphere of the judicial 
function, the citations from opinions given by different 
judges are not presented merely as views of private indi- 
viduals. Having been expressed in cases actually enforc- 
ing rights and obligations of private persons, those views 
are on public record, as having been, in a certain degree, 
the basis of the government's action, in administering the 
law. They have, to a certain extent, become part of a 
political fact. Under the same view of the conditions of 
political truth, the language of Presidents and of Congress 
will not here be cited as expression of authority in doc- 
trine ; but so far only as it may be regarded as having 
been, in specific instances, a basis for either executive or 
legislative action, and so have become, more or less, mat- 
ter of political fact. 

For this reason I do not attempt, by any citation, from 
their respective messages, proclamations, or other official 
statements, to present either President Lincoln's or Presi- 
dent Johnson's general view of the nature and relation of 
the States in the Union. 

So far as Mr. Lincoln's methods of State restoration 2 
were sanctioned by Congress, they were so as being neces- 

1 From cases in the State courts cited in United States Digest, xii. 692 
(Confederate States), it would appear that they have almost constantly 
affirmed their State governments to have been lawful governments during 
the war and to have had no idea of a usurpation. 

2 A summary view of Mr. Lincoln's general idea on this matter is given 
in H. J. Raymond's Life, &c. of Lincoln, 12mo, 451, and in Chapter XIII., 
of the 8vo edition. 



THEORY OF OUR NATIONAL EXISTENCE. 35 

Mr. Lincoln's Plan of State Restoration. 

sitated, for a certain limited period, by the conditions of a 
state of war. A difference of action on this subject could 
hardly arise among those who all equally assumed the 
right and duty of the general government to resist seces- 
sion as rebellion, 1 until the conditions of belligerency had 
ceased to complicate the question. This cannot be said to 
have been the state of things until after Mr. Lincoln's 
death. 

Even if it could be shown that the view finally acted 
upon in the Reconstruction legislation of 1867 was irre- 
concilable with Mr. Lincoln's own plan of " restoration," 
the course taken by Congress in that matter was begun in 
his lifetime ; apparently on the initiative given • by his 
message to Congress with the proclamation of amnesty, 
both dated Dec. 8, 1863. The proclamation recites, — 

" Whereas, in and by the Constitution of the United States, it is 
provided that the President ' shall have power to grant reprieves 
and pardons for offences against the United States, except in cases 
of impeachment ; ' and whereas a rebellion now exists whereby the 
loyal State governments of several States have for a long time 
been subverted, and many persons have committed, and are now 
guilty of treason against the United States," &c. 

After stating the conditions of the proffered amnesty, 
the President makes known that, — 

" Whenever ... a number of persons . . . not less than . . . 
shall re-establish a State government which shall be republican, 
. . . such government of the State, and the State, shall receive 
thereunder the benefit of the constitutional guaranty which de- 
clares," &c. 13 U. S. Stat. 738, App. 

1 It should be remembered that agreement in this course of action by no 
means involved harmony in political theory, and that the right and duty were 
strenuously contested, in the beginning, by many who were not citizens of 
the Confederate States. On each of these points compare Macpherson's 
Hist. pp. 48-90, under " The proceedings of the government in relation to 
the secession movement." Period, December i860 to May 1861. 



36 EXISTENCE OF THE STATES EST TJXION. 

Mr. Lincoln's Plan of State Kestoration. 

In the Message of the same date, when referring to the 
offer made in the proclamation, the President, speaking of 
the constitutional guaranty, says : — 

" But why tender the benefits of this provision only to a State 
government in this particular way ? x This section of the Consti- 
tution contemplates a case wherein the element within a State, 
favorable to a republican government in the Union, may be too 
feeble for an opposite and hostile element, external, or even within 
the State, and such are precisely the cases with which we are now 
dealing." " Macpherson Pol. Hist. 146. 

Further on in the Message, the President says : — 

"The suggestion in the proclamation, as to maintaining the 
political frame-work of the States on what is called reconstruc- 
tion, is made in the hope that it may do good without danger of 
harm." 

The Message did not invite the action of Congress ; 
but, in the conclusion of the Proclamation, the President 
said, — 

" While the mode presented is the best the Executive can sug- 
gest, with his present impressions, it must not be understood that 
no other possible mode would be acceptable." Macpherson Pol. 
Hist. 147, 148. 

Whatever may have been Mr. Lincoln's theory of the 
origin of the Constitution, it is clear that he always as- 
sumed the continued existence of the eleven States of the 
Confederacy, as political bodies remaining still in being, 
either in or out of the Union ; though, in either case, 
being for the time " out of their practical relations," to 

1 It is not clear what " particular way " Mr. Lincoln referred to. 

2 If the theory of a usurping government, supported by overwhelming 
numbers against some unknown handful of loyal people, standing for the 
State, is to be held statesmanlike, and to be accepted in our public law, Mr. 
Lincoln ought, in simple justice, have his share, as one at least among the 
patentees ; if, indeed, the whole credit does not belong to him, as the original 
discoverer. 



THEORY OF OUR NATIONAL EXISTENCE. 37 

A bill passed, — not signed by the President. 

use his own phrase, to the United States, or to the nation, 
or to the government, or to the other States. 1 

Although the President had not directly invited the 
action of Congress, the House of Representatives on the 
motion of Mr. H. Winter Davis, Dec. 15, 1863 (House 
Journal, 1st Sess. 38th Cong. p. 57), referred to a select 
committee " so much of the Message as relates to the duty 
of the United States to guarantee a republican form of 
government to the States in which the governments recog- 
nized by the United States have been abrogated or over- 
thrown," with instructions " to report the bills necessary 
and proper for carrying into execution the foregoing guar- 
anty " (vote 89 to 80). The bill reported Feb. 16, 1864, 
bill No. 244 of 38th Congress, lb. p. 624, entitled a bill to 
guarantee to certain States tohose governments have been 
usurped or overthroivn, a republican form of government, 
after undergoing amendments, 2 finally passed the Senate 
and House July 2, 1864, but was not signed by the Presi- 
dent ; the Congress adjourning the same day, sine die. A 
copy of the bill was published, as appended to Mr. Lin- 
coln's proclamation of July 8, 1864, in which he speaks of 
it as containing " among other things a plan for restoring 
the States in rebellion to their proper practical relation in 
the Union," &c. Macpherson Hist. 318 ; 13 U. S. Stat. 
744. 

1 Some further remarks on Mr. Lincoln's views on this matter will he 
found further on in Chapter VII. 

2 The bill as amended before the final vote had as preamble, — 

[a] " Whereas, the so-called Confederate States are a public enemy, 
waging an unjust war, whose injustice is so glaring that they have no right 
to claim the mitigation of the extreme rights of war which are accorded by 
modern usage to an enemy who has a right to consider the war a just one ; 
[b] and whereas, none of the States which, by a regularly recorded majority 
of its citizens, have joined the so-called Southern Confederacy, can be con- 
sidered and treated as entitled to be represented in Congress, or to take any 
part in the political government of the Union : Therefore — " This pream- 
ble was rejected by the House of Representatives ; vote 75 to 57. Mac- 
pherson Hist. 317 ; House Journal 1st Sess. 38th Congress, 624. 



38 EXISTENCE OF THE STATES IN UNION. 

Plan for Reconstruction, in the Bill. 

There is nothing in the body of the bill (13 Stat. U. S. 
745, App.) to explain how a deficiency of republican gov- 
ernment, calling for the exercise of the duty of guaranty, 
had occurred in any of the States which, in the first sec- 
tion, are designated only as " the States declared in 
rebellion against the United States ; " no States being 
designated by name anywhere in the bill ; and there is no 
assertion that no government was then existing in those 
States, such as is made in the Reconstruction Acts of 
1867. 

The plan of the bill differed from that of Mr. Lincoln in 
directing the call for a convention in the several States 
referred to, for the purpose of framing a new constitution ; 
which should contain certain provisions, respecting eligibil- 
ity to office, involuntary servitude, and payment of debt 
" created by or under sanction of the usurping power " 
(sec. 7). It also provided that if the convention first 
called " refuse to re-establish the State government on the 
conditions aforesaid, the provisional governor shall declare 
it dissolved," and whenever the President " shall have rea- 
son to believe " that there is " a sufficient number of the peo- 
ple of the State entitled to vote under this act," ready to 
re-establish the State government on these conditions, he 
should direct the said governor to call another convention 
(sec. 9). 13 Stat. U. S. 745. The bill gave the franchise 
to all resident white citizens of full age who should take 
the oath of allegiance prescribed by Act of Congress of 
July 2, 1862 (sec. 4). 

For the reason above stated it is immaterial to impure 
into the views of the nature of the Union held by Mr. 
Johnson as exhibited by his public course in reference to 
State Reconstruction. His political doctrine may or may 
not have been irreconcilable, either with the action of his 
predecessor, or with the policy which prevailed in Congress, 
as the resulting force from a variety of conflicting opinions. 



THEORY OF OUR NATIONAL EXISTENCE. 39 

Congressional Reconstruction. 

It is enough that the political course actually followed in 
the Reconstruction measures was supposed, at the time, 
by Mr. Johnson, and by all parties, to be contradictory 
to those political principles by which he, as President, 
directed his efforts. 1 

It might, perhaps, have been reasonable to expect that 
some more or less clear explanation of the political status 
of a State, as affected by the Rebellion, would have been 
given in the three Acts of Congress which constitute the 
so-called Reconstruction measures ; or, at least, in some 
judicial decisions affirming their validity. It would seem, 
however, to be still an open question whether these meas- 
ures were in harmony with our political faiths on the 
theory, that the States in their several corporate capacities 
were to be treated as political persons required to submit 
to all the consequences of defeat on " wager of battle," 
or under the view that, as States, they were claimants of 
the Constitutional guaranty for a republican government, 
of which they had been deprived by forcible usurpation ; 
which guaranty was ingeniously realized by organizing, 
under military coercion, an electoral machinery driven by 
the votes of the emancipated slaves ; the States appearing 
in the attitude of political repentance by exercise of inher- 
ent autonomy. There is little to be learned in regard to 
the theoretic status of the States affected by them from 

1 In fact there was very little difference in the matter of theory between 
these bitter opponents. In the preamble of his Proclamation of April 2, 
1866, Mr. Johnson's language was : " Whereas, &c. it is the manifest determi- 
nation of the American people that no State, of its own will, has the right or 
power to go out of, or separate from, the American Union, and that, there- 
fore, each State ought to remain, and constitute an integral portion of the 
United States . . . and whereas, the Constitution of the United States pro- 
vides for constituent communities only as States, and not as Territories, 
dependencies, provinces, and protectorates." 14 U. S. Stat. 39th Congress, 
App. ii. It was eighteen months after this that Chief Justice Chase said : — 
" The Constitution, in all its provisions, looks to an indestructible Union 
composed of indestructible States." Ante, p. 12. In the Reconstruction 
legislation the States are carefully designated as States. 



40 EXISTENCE OF THE STATES EST UNION. 

The Reconstruction Legislation. 

language of the three Acts of Congress which constitute 
the so-called Reconstruction legislation; all passed over 
President Johnson's objections. But in politics, if any- 
where, " action speaks louder than words." 

The first of these is that of March 2, 1867, entitled An 
act for the more efficient government of the Rebel States. 
14 U. S. Stat. 428; of which Sec. 1 declares " whereas no 
legal State government, or adequate protection for life and 
property, now exists in the rebel States of Virginia, &c, 
and whereas, it is necessary that peace and good order 
should be enforced in said States until loyal and republi- 
can State governments can be legally established." x 

Similar expressions occur in the supplementary Acts of 
March 23, and July 19, 1867. 15 U. S. Stat. 2, 14. 

The first of these Acts provided that the said " rebel 
States " shall be divided into military districts, and made 
subject to the military authority of the United States, &c. 
(Sec. 1). 

The Act differs from the bill of 1864 (ante, p. 37), in 
not directing the calling of a convention by the provi- 
sional governor, but enacting that, — 

" When the people of any one of the said rebel States shall 
have formed a constitution of government in conformity with the 
Constitution of the United States in all respects, framed by a con- 
vention of delegates selected by the male citizens of said State, 
twenty-one years old and upward, of whatever race, color, or pre- 
vious condition . . . and when such constitution shall provide that 
the elective franchise shall be enjoyed by all such persons as have 
the qualifications herein stated for electors of delegates," &c. 

And that, when such constitution shall have been ap- 
proved by Congress, and when, — 

1 This Act is cited by Mr. Justice Grier as one ground for holding, in 
his dissenting opinion, that Texas was not a State in the Union at the time 
in question. See ante, p. 16, Texas v. White. 



THEOEY OF OUR NATIONAL EXISTENCE. 41 

The Reconstruction Legislation. 

" Said State, by a vote of its legislature elected under said con- 
stitution shall have adopted the amendment to the Constitution of 
the United States, proposed by the 39th Congress, and known 
as Article fourteen, and when said Article sfiall have become a 
part of the Constitution of the United States, said State shall be 
declared entitled to representation in Congress, 1 and senators and 
representatives shall be admitted therefrom, on their taking the 
oath prescribed by law, and then and thereafter the preceding sec- 
tions of this act [relating to military government] shall be inopera- 
tive in said State." Sec. 5. 

In conclusion it is enacted, — 

" That until the people of said rebel States shall be by law 
admitted to representation in the Congress of the United States, 
any civil governments which may exist therein shall be deemed 
provisional only, and in all respects subject to the paramount 
authority of the United States at any time to abolish, modify, con- 
trol, or supersede the same." Sec. 6. 

The two supplementary Acts consist almost entirely in 
the detailed provisions for conducting the elections in 
view of calling the conventions. In the first section of 
the last of these it is declared to have been — 

" The intent of the two preceding Acts that the governments 
then existing in the rebel States of Virginia, &c. . . . were not le- 
gal governments, and that, thereafter, said governments, if con- 
tinued were to be continued subject in all respects to the military 
commander of the respective districts, and to the authority of Con- 
gress." 

With these Acts, as equally important, in indicating the 
political status, may be noticed the Resolution passed, 
over the President's objections, July 20, 1868, entitled 

1 In this clause it is clearly supposed that the State shall be in existence 
when this is declared. White v. Hart, ante, pp. 19, 21. Mr. Justice Swayne 
cites this as showing that " the political department of the government " 
had regarded the State as having existed during the Rebellion. But why 
are not the previous provisions, here cited, equally important in that respect"? 
Do they equally show that the State remained a State ? 



42 EXISTENCE OF THE STATES IN UNION. 

Report of the Committee on Reconstruction. 

Resolution excluding from the Electoral College votes of 
States lately in Rebellion, which shall not have been reorgan- 
ized. 15 U. S. Stat. 257. It reads, however, " that none 
of the States whose inhabitants were lately in rebellion," 

&C. 1 

The report made June 8, 1866, by the majority of the 
joint committee on Eeconstruction, 2 as being the most 
authoritative declaration of principles supposed to have 
been afterwards carried out in political action, is a docu- 
ment which, either for good or evil, will probably be re- 
garded as one of the most important in the history of this 
country. « 

For this reason some paragraphs, bearing most directly 
on the position and relations of States in the Union, are 
here cited. 

In this report it is said : — 

[a] " A claim for the immediate admission of senators and rep- 
resentatives from the so-called Confederate States has been urged, 
which seems to your committee, not to be founded either in reason 
or in law, and which cannot be passed without comment. Stated in 
a few words, it amounts to this : That inasmuch as the lately insur- 
gent States had no legal right to separate themselves from the 
Union, they still retain their positions as States, and consequently 
the people have a right to immediate representation in Congress 
without the imposition of any conditions whatever "... &c. 

After briefly reciting the civil and military transactions 

1 In connection with all the Eeconstruction legislation of Congress, may- 
be remembered also the resolutions of the House of Representatives of July 
22, 1861, denying "any purpose of conquest or subjugation," and affirming 
that the war was waged " to preserve the Union with all the dignity, equal- 
ity, and rights of the several States unimpaired, and that as soon as these 
objects are accomplished the war ought to cease." House Journal, 1st Sess. 
37th Congress, p. 124, and citation of it in President Johnson's Proclama- 
tion of Aug. 20, 1866, 14 U. S. Stat. App. i. 

2 Report No. 30 ; being 2d vol. Hcuse Reports of Select Committees of 
1st Session 39th Congress. 



THEORY OF OUR NATIONAL EXISTENCE. 43 

Report of the Committee on Reconstruction. 

on the part of the Rebellion, and its final suppression by 
military force alone, it is said, — 

[&] " It cannot, we think, be denied by any one, having a toler- 
able acquaintance with public law, that the war thus waged was a 
civil war of the greatest magnitude. The people waging it were 
necessarily subject to all the rules which, by the law of nations, 
control a contest of that character, and to all the legitimate conse- 
quences following it. One of those consequences was that within 
the limits prescribed by humanity, the conquered rebels were at the 
mercy of the conquerors. That a government thus outraged had a 
most perfect right to exact indemnity for the injuries done, and 
security against the recurrence of such outrages in the future would 
seem too clear for dispute. What the nature of that security should 
be, what proof should be required of a return to allegiance, what time 
should elapse before a people thus demoralized should be restored 
in full to the enjoyment of political rights and privileges, are ques- 
tions for the law-making power to decide, and that decision must 
depend on grave considerations of the public safety, and the general 
welfare. 

[c] " It is moreover contended, and with apparent gravity, that 
from the peculiar nature and character of our government no such 
right on the part of the conqueror can exist ; that from the mo- 
ment when rebellion lays clown its arms, and actual hostilities cease, 
all political rights of rebellious communities are at once restored ; 
that because the people of a State of the Union were once an or- 
ganized community within the Union, they necessarily so remain, 
and their right to be represented in Congress, at any and all times, 
and to participate in the government of the country under all cir- 
cumstances, admits of neither question nor dispute. If this," &c. 

[rf] " Your committee do not deem it either necessary or proper 
to discuss the question whether the late Confederate States are still 
States of this Union, or can ever be otherwise. Granting 1 this 
profitless abstraction about which so many words have been wasted, 
it by no means follows that the people of those States may not 

1 From the context it must be inferred that the committee granted to the 
so-called conservatives that the States were still States in the Union, and 
could not be otherwise. 

Of interest in connection with the decisions already cited and with this 



44 EXISTENCE OF THE STATES IN UNION. 

Report of the Committee on Reconstruction. 

place themselves in a condition to abrogate the powers and priv- 
ileges incident to a State of the Union, and deprive themselves of 
all pretence of right to exercise those powers and enjoy those priv- 
ileges. A State within the Union has obligations to discharge as a 
member of the Union. It must submit to federal laws and uphold 
federal authority. It must have a government republican in form, 
under, and by which, it is connected with the general government, 
and through which it can discharge its obligations. It is more 
than idle, it is a mockery, to contend that a people who have thrown 
off their allegiance, destroyed the local government which bound 
their States to the Union as members thereof, defied its authority, 
refused to execute its laws, and abrogated every provision which 
gave them political rights within the Union, still retain, through 
all, the perfect and entire right to resume, at their own will and 
pleasure, all their privileges within the Union, and especially to 
participate in its government and to control the conduct of its 
affairs. To admit such a principle for one moment, would be to 
declare that treason is always master, and loyalty a blunder. Such 
a principle is void by its very nature and essence, because inconsis- 
tent with the theory of government and fatal to its very existence. 

report, is the language of Judge Nelson two years later, June, 1868, In re 
Egan, 5 Blatchford, 323 : " For aught that appears, the civil local courts of 
the State of South Carolina were in the full exercise of their judicial func- 
tions at the time of this trial, [ by court martial, Nov. 20, 1865 ] as restored 
by the suppression of the rebellion, some seven months previously, and by 
the revival of the laws and the reorganization of the State Government, in 
obedience to, and in conformity with, its constitutional duties to the Federal 
"Union. Indeed, long previous to this, a Provisional Governor had been ap- 
pointed by the President, who is commander-in-chief of the army and navy 
of the United States (and whose will, under martial law, constituted the only 
rule of action), for the special purpose of changing the existing state of 
things and restoring civil government over the people. In pursuance of 
this appointment a new Constitution had been formed, a Governor and a 
Legislature had been elected under it, and the State was in the full enjoy- 
ment, or was entitled to the full enjoyment, of all her constitutional rights 
and privileges. The Constitution and laws of the United States were there- 
by acknowledged and obeyed, and were as authoritative and binding over 
the people of the State, as in any other portion of the country. Indeed, the 
moment the rebellion was suppressed, and the government growing out of it 
was subverted, the ancient possession, authority, and laws resumed their ac- 
customed sway, subject only to the new reorganization or the appointment 
of proper officers to give them operation and effect." 



THEORY OF OUR NATIONAL EXISTENCE. 45 

Report of the Committee on Reconstruction. 

[e] " On the contrary, we assert that no portion of the people of 
this country, whether in State or Territory, have the right, while 
remaining on its soil, to withdraw from or reject the authority of 
the United States. They must obey its laws as paramount and 
acknowledge its jurisdiction. They have no right to secede ; and 
while they can destroy their State governments and place them- 
selves beyond the pale of the Union, so far as the exercise of State 
privileges is concerned, they cannot escape the obligations imposed 
upon them by the Constitution and the laws, nor impair the exercise 
of national authority. The Constitution, it will be observed, does 
not act upon States, as such, but upon the people ; while, there- 
fore, the people cannot escape its authority, the States may, through 
the act of their people, cease to exist in an organized form, and 
thus dissolve their political relations with the United States." 

After some notice of the question as affected by the 
principle " that taxation should be only with the consent 
of the taxed, through their own representatives," it is said 
farther in the report, — 

[/] " While thus exposing fallacies which, as your committee 
believe, are resorted to for the purpose of misleading the people, 
and distracting their attention from the questions at issue, we 
freely admit that such a condition of things should be brought, if 
possible, to a speedy determination. It is most desirable that the 
Union of all the States should become perfect, consistent with the 
peace and welfare of the nation ; that all these States should be- 
come fully represented in the national councils, and take their share 
in the legislation of the country "... &c. 

The committee proceed to notice the question of placing 
" the qualifications for voters in a State within the power 
of Congress," the doubts as to the existence of the power, 
and " whether the States would consent to surrender a 
power they had always exercised, and to which they were 
attached," and the proposition for modifying that power, 
as now expressed in the Fifteenth Amendment. After 
some discussion of President Johnson's methods of Recon- 
struction, it is further said, — 



46 EXISTENCE OF THE STATES IX UNION. 

Report of the Committee on Reconstruction. 

\_g~] u If, as the President assumes, these insurrectionary States 
were, at the close of the war, wholly without State governments, it 
would seem that, before being admitted to participation in the 
direction of public affairs, such governments should be regularly or- 
ganized. Long usage has established, and numerous statutes have 
pointed out, the mode in which this should be done. A convention 
to frame a form of government should be assembled under compe- 
tent authority. Ordinarily, this authority emanates from Congress ; 
but, under the peculiar circumstances, your committee is not dis- 
posed to criticise the President's action in assuming the power 
exercised by him in this regard." . . . 

Further on it is remarked in the same report, — 

[/?] " It would undoubtedly be competent for Congress to waive 
all formalities, and to admit these Confederate States to represen- 
tation at once, trusting that time and experience would set all 
things right-" 

In concluding, the committee "propose to re-state as 
briefly as possible, the general facts and principles appli- 
cable to all the States recently in rebellion." 

These are classed under ten paragraphs, all of which are 
important in bearing on the general question, but cannot 
be fully cited here. 

In the first paragraph, after stating the initiatory acts of 
the rebellion, it is said : — 

" From the time these Confederate States thus withdrew their 
representation in Congress and levied war against the United 
States, the great mass of their people became and were insurgents, 
rebels, traitors, and all of them assumed and occupied the political, 
legal, and practical relation of enemies of the United States. This 
position is established by acts of Congress and judicial decisions, 
and is recognized repeatedly by the President in public proclama- 
tions, documents, and speeches." 

In the second paragraph : — 

" The States thus confederated prosecuted their war against the 
United States to final arbitrament, and did not cease until all their 
armies were . . . every vestige of State and Confederate govern- 



THEORY OP OUR NATIONAL EXISTENCE. 47 

Report of the Committee on Reconstruction. 

ment obliterated, their territory overrun and occupied by the federal 
armies, and their people reduced to the condition of enemies con- 
quered in war, entitled only by public law to such rights, privileges, 
and conditions as might be vouchsafed by the conqueror. This 
position is also established by judicial decisions, and is recognized by 
the President in public proclamations, documents, and speeches." 

Under the third paragraph : — 

"Having voluntarily deprived themselves of representation in 
Congress for the criminal purpose of destroying the federal Union, 
and having reduced themselves, by the act of levying war, to the 
condition of public enemies, they have no right to complain of 
temporary exclusion from Congress : but, on the contrary, having 
voluntarily renounced the right to representation, and disqualified 
themselves by crime from participating in the government, the 
burden now rests upon them, before claiming to be reinstated in 
their former condition, to show that they are qualified to resume 
federal relations. In order to do this they must prove that they 
have established, with the consent of the people, republican forms 
of government in harmony with the Constitution and laws of the 
United States, that all hostile purposes have ceased, and should give 
adequate guarantees against future treason and rebellion, — guar- 
antees which shall prove satisfactory to the government against 
which they rebelled and by whose arms they were subdued." 

Under the fourth paragraph : — 

" Having, by this treasonable withdrawal from Congress, and by 
flagrant rebellion and war, forfeited all civil and political rights 
and privileges under the federal constitution, they can only be 
restored thereto by the permission and authority of that constitu- 
tional power against which they rebelled and by which they were 
subdued." 

Under the fifth paragraph : — 

" These rebellious enemies were conquered by the people of the 
United States, acting through all the co-ordinate branches of the 
government and not by the executive department alone." 

The remainder of this paragraph and the five following 
relate mainly to the contest then going on between Presi- 



48 EXISTENCE OE THE STATES Es EXIOX. 



Diversity of Opinions. A Minority Report. 



dent Johnson and Congress, which, it is not necessary to 
consider here. 

Finally, it is remarked : — 

" Before closing this report, your committee beg leave to state 
that the specific recommendations submitted by them are the result 
of mutual concession after long and careful comparison of conflict- 
in a opinions. Upon a question of such magnitude, infinitely im- 
portant as it is to the future of the republic, it was not to be expected 
that all should think alike. . . " 1 

In reading these extracts it should be remembered that 
not only were the " specific recommendations submitted," 
that is, the amendment and legislation proposed, but the 
Report itself was, also, the result of more or less com- 
promise from a variety of more or less discordant opinions ; 
and also that it was composed with special reference to a 
view of the nature of the Union supposed to be antago- 
nistic to any accepted by any member of the majority of 
the committee ; which view had been supported by Mr. 
Johnson, in his messages and proclamations, and was fur- 
ther illustrated and defended by the minority of the same 
committee. 

The report made by this minority, June 20, 1866, which 
also was printed with the Reports of committees of this 
Congress, 2 may contain propositions of much truth and 
arguments of great force, but as it was not the basis of 
any political action of the government, this is not the place 
to cite from it ; though some of its positions may be no- 
ticed further on in these pages. 

1 The great diversity of opinion prevailing among members of the House 
at this time may be judged by the many various Resolutions in the Journals 
of the 1st and 2d session of the 39th Congress relating to the general subject 
of reconstruction. See also ilacpherson's Hist., p. 316, and Wilson's Hist, 
of Reconstruction. 

z Report Xo. 30, Part 2. 



THEORY OF OUR NATIONAL EXISTENCE. 49 

Belligerency considered, in Supreme Court. 



CHAPTER II. 

The Subject continued by Examination of the Language op the 
Several Departments of the Government in Reference to Ques- 
tions of Belligerency and Treason. — A Chaos of Doctrine. 

There may be differences of opinion as to that capacity of 
the executive to institute a blockade, and of the judiciary 
to recognize it, as arising from an existing state of war in- 
volving the exercise of belligerent rights, which was as- 
serted by the majority in the Prize Cases, 2 Black, 667, in 
which instance the minority referred the power to Con- 
gress. But the settlement of this doubt is not material to 
the inquiry, To whom did the court attribute belligerency 
when recognized ? 

The eleven Southern States were declared the party bel- 
ligerent, in those cases at the December Term, 1862, in 
the majority opinion delivered by Mr. Justice Grier, con- 
taining references to the States, such as these : " Hence, in 
organizing this rebellion they have acted as States [Ital. in 
report] claiming to be sovereign." 2 Black, 669. " A civil 
war, such as that now waged between the Northern and 
the Southern States." lb. 673. 1 

1 It would appear that the division of opinion in this case was, essen- 
tially, as to the nature of a State in the Union. Mr. Justice Grier's concep- 
tion of such a State involved recognition of the capacity for international 
war, independently of the degree of military power actually exhibited in 
operation. See ante, p. 17, and note to the same judge's dissenting opinion, 
in Texas v. White. This had been the position taken by Judge Sprague 
in the Amy Warwick, 2 Sprague's Decisions, 143, 14 Monthly Law Reporter, 
498, which was one of these Prize Cases. See post, p. 166. But it is not 
certain that the other justices concurring in the opinion delivered by Mr. 
Justice Grier in the Prize Cases took the same view of the State's capacity. 
They may have considered the insurgents personally as constituting a bel- 
ligerent party as known to the law of public war. 



50 STATES AS PARTIES IX WAR. 

The Prize Cases. View of the Minority. 

In the minority opinion, by Mr. Justice Nelson, with 
Taney, Chief Justice, and Catron and Clifford, JJ., con- 
curring, the recognition of the conditions of belligerency is 
limited to the time after the Act of Congress of July 13, 
1861, with the distinction that, before that date, the insur- 
gents " personally," or independently of recognized politi- 
cal organizations and territorial boundaries, could not be 
considered, by the executive and judiciary, as a belligerent, 
in a war ; as defined by the law of nations ; such as would 
authorize the President alone to institute a blockade. 1 

But the discrimination of t he States as the public enemy, 
in the war when so recognized, is made as distinctly in the 
opinion of the minority as in that of the majority. 

Mr. Justice Xelson said, — 

' ; This Act of Congress, we think, recognized a state of civil war 
between this government and the Confederate States, and made it 
territorial." 2 Black, 695. " We agree, therefore, that the Act 
of July 13, 1861, recognized a state of civil war between the gov- 
ernment and the people of the States described in that proclama- 
tion." lb. 696. "I am compelled to the conclusion that no civil 
war existed between this government and the States in insurrection, 
till recognized by the Act of Congress of July 13, 1861." lb. 698. 2 

It may be supposed that as to all cases which arose after 
the Act of Congress of July 13, 1861, the court regarded 
the discrimination of the party belligerent as settled, either 
by its own judgment or by the authority of the legislative 

1 The distinction intended by Judge Nelson appears clearer by compar- 
ing Mauran v. Ins. Co., 6 "Wall. 1, in which, also, he delivered the opinion of 
the court, sustaining the claim against the insurers for loss by a capture or 
seizure on the lower Mississippi, May 17, 1861 ; that is, before the Congres- 
sional recognition of war, as the act of " a <7!<cw/-governnient, or government 
de facto," — " the ruling power of the country at that time." Chase, C. J., 
and Swayne, J., dissented ; but their reasons are not stated. 

2 Could it be said on the authority of these cases, that the existence of a 
state of war may be within the competency of the judiciary, as a legal ques- 
tion, while the determination of the party belligerent is beyond that com- 
petency, as being a political question ? 



THEORY OF OUR NATIONAL EXISTENCE. 51 

Position of the Confederate Government. 

and executive departments. The terras " Rebel States," 
" insurrectionary States," " States in rebellion," " rebel- 
lious States," are in ordinary use, 1 and there is no further 
attempt to discriminate an insurgent population, or a de 
facto military organization, as the party belligerent, in dis- 
tinction from States with recognized political capacity to 
wage war : unless, perhaps, exceptions may occur, when 
speaking of the acts of the Confederate government. An 
illustration of this may be found in the language of the 
court in Hickman v. Jones, 9 Wall. 197, a case founded on 
a claim for damages by reason of a prosecution in a Con- 
federate District Court, for treason against the Confederacy. 
In the opinion delivered by Mr. Justice Swayne, ib. 200, it 
is said : — 

" The rebellion, out of which the war grew, was without any 
legal sanction. In the eye of the law, it had the same properties 
as if it had been the insurrection of a county or smaller municipal 
territory against the State to which it belonged. The proportions 
and duration of the struggle did not affect its character. Nor was 
there a rebel government de facto in such a sense as to give legal 
efficacy to its acts. It was not recognized by the national, nor by 
any foreign government. It was not at any time iu possession of 
the capital of the nation. It did not for a moment displace the 
rightful government. That government was always in existence, 
always in the regular discharge of its functions, and constantly exer- 
cising all its military power to put down the resistance to its au- 
thority in the insurrectionary States. The union of the States for 
all the purposes of the Constitution, is as perfect and indissoluble 

i See, particularly, Texas v. White, 7 Wall. 700; Thornton v. Smith, 8 
Wall. 1 ; The Legal Tender Cases, 12 Wall. 553; White v. Hart, 13 Wall. 
651 ; Hamilton v. Dillon, 21 Wall. 86 ; United States v. Ins. Co., 22 Wall. 
102; Mathews p. McStea, 1 Otto, 11. The cases arising under the Confisca- 
tion Acts, and particularly those sustaining the seizure of cotton, as a 
"species of property excepted, by its peculiar character, and by circum- 
stances from the "general rule of international law" (2 Wall. 204; 9 Wall. 
540), were decided in the Supreme Court under a stringent application of 
the idea of treating the States and their inhabitants as alien enemy. See 
post, under the question of treason. 



52 VIEWS OF THE BELLIGERENCY. 

B. T. Johnson's Statement in Chase's Decisions. 

as the union of the integral parts of the States themselves ; and 
nothing but revolutionary violence can, in either case, destroy the 
ties which hold the parts together. For the sake of humanity, cer- 
tain belligerent rights were conceded to the insurgents in arms. But 
the recognition did not extend to the pretended government of the 
Confederacy. The intercourse was confined to its military authori- 
ties. In no instance was their intercourse otherwise than of this 
character." 

In the preface to his edition of a selection from Chase's 
Decisions, Mr. B. T. Johnson quotes from his own address 
at the meeting of the Richmond bar, on the occasion of the 
decease of the Chief Justice : " His decisions have been 
followed by the Supreme Court, whose adjudications they 
preceded, and we are indebted to him for the policy of the 
law adopted and enforced by that tribunal." He further 
stated of the Chief Justice, in the same connection, that, — 

" Rising at once to the greatness of the occasion, he eliminated 
and declared the principles of public law which controlled our cir- 
cumstances, and from them marked out an application which oper- 
ated as amnesty, peace, and security for life and property. In the 
case of Keppell's Administrator v. The Petersburg Railroad, he 
announced that the contest through which we had gone was a 
civil war, and that all the consequences of general war followed 
from it. He declared that the acts of the governments belligerent 
to the Federal government, &c. . . . Following these broad and 
beneficent declarations of legal principles controlling the status of 
the late Confederate States, &c. . . . The existence of the State 
governments de facto being granted, all their acts," &c. Preface, 
xiii., xiv. 

The decision Mr. Johnson relies on, was in Keppel's 
Adm'r v. Petersburg Railroad, May, 1868, " as being the 
first outgiving from him of the change which was going on 
in his mind since the case of Shortridge v. Macon," 
June, 1867. Preface iii. As I read these opinions, even 
with that softening of expression which the editor says 



THEORY OF OUR NATIONAL EXISTENCE. 53 

B. T. Johnson's Statement in Chase's Decisions. 

they have undergone under the deceased judge's direction, 
there is no departure from the position in the earlier case, 
and it is not at all clear that the Chief Justice ever did 
more than recognize a de facto belligerent, without intend- 
ing any particular recognition of the eleven States, in their 
political capacity as the parties, which appears to be the 
point made by General Johnson. 

But this had been done by the court, following the 
action of Congress, long before. Indeed, Chief Justice 
Chase seems always to have avoided the recognition of the 
States as the party belligerent. In United States v. Mor- 
rison, June Term, 1869, Johnson's Chase's Decisions, 525, 
in charge to the jury, he said, " The national government 
conceded belligerent rights to the armies of the insurgent 
States during the late civil war." 

Chief Justice Chase seems to have accepted the customs 
of international war as applicable in governing these States 
by the military power for a certain time, see Merchant's 
Bank v. Union Bank, 22 Wall. 293 (citing the Grape-shot, 
9 Wall. 129) : but without any distinct recognition of 
those States as being politicall3 r belligerent powers ; and 
that this was his view may appear by comparing the dis- 
senting opinion in that case by Field, J. He also sup- 
ported an extreme application of belligerent capacity, dur- 
ing the war, in the cotton-seizure cases {ante, p. 51,%.). But 
whether he adopted the conquest theory, to the extent of 
Judge Swayne's opinion in White v. Hart, seems very 
doubtful. 

To appreciate more accurately the position of the judi- 
ciary on a question of this nature, which could hardly 
await the lingering approach of legal procedure, we may 
properly compare the contemporary language of the execu- 
tive and legislative. The same comparison may throw 
much light on the origin of the political doctrine as to 
State existence which has been set forth as legal judgment 



54 POSITIOX OF THE EXECUTIVE. 

President Lincoln's View of the Belligerency. 

in Texas v. White, or in later cases supposed to be in 
harmony with it. 

In the earliest stages of the rebellion and civil war, there 
was necessarily a doubt how far any act of violence, by 
sea or land, by persons claiming to have authority from 
the States, as political organizations, would be recognized 
by any government as beyond the jurisdiction of ordinary 
criminal procedure ; that is, would be taken by the gov- 
ernment of the United States or by foreign nations for the 
act of some belligerent power. 1 

Mr. Lincoln, in a proclamation, April 19, 1861, 12 Stat. 
U. S. 1262, 1 Eeb. Rec. 78, Macpherson's Pol. Hist, of the 
Rebellion, 149, declared such acts at sea " under the pre- 
tended authority of the said States " punishable as piracy. 
But the fact, that this position was abandoned, would set- 
tle nothing as to the question whether the belligerent rec- 
ognized was the States, as politically capable of war, or 
was an insurrectionary military organization, as a de facto 
belligerent power. 

President Lincoln's judgment seems to have wavered 
between a first conception of the rebellion, as the act of 
individual inhabitants of States regarded only as certain 
geographical districts, and a later one, more in harmony, 
perhaps, with the action of the other departments and. with 
popular ideas, in which the movement was attributed to 
the States as political bodies. 

Mr. Lincoln's first proclamation, April 15, 1861, 12 U. S. 
Stat., 1258, I. Reb. Rec, 64, Macph. Hist., 114, called out 
the militia, " To suppress unlawful combinations too pow- 

1 This doubt appears in Mr. Lincoln's earlier messages. The action, or 
want of action, by Mr. Lincoln's predecessor, was derived from a directly 
opposite view of duty, because, with his theory of the Union, he could re- 
gard the States as each politically capable of waging war, and therefore 
could not hold personally responsible individual citizens acting, as he sup- 
posed, under their authority. See President Buchanan's Last Message, 
Dec. 4, 1860, with the opinion by Attorney-General Black ; Macpherson's 
Pol. Hist. 49, 51. 



THEORY OF OUR NATIONAL EXISTENCE. 55 

President Lincoln's View of the Belligerency. 

erful to be suppressed by the ordinary course of judicial 
proceedings, or by the powers vested in the magistrates by 
law." That of April 19, 1861, 12 U. S. Stat., 1258, I. Reb. 
Rec, 78, Macpherson, 119, which is that declaring the 
blockade of certain ports, recites, " Whereas an insurrec- 
tion against the Government of the United States has 
broken out and yet exists in the States of," &c, " and a 
combination of persons engaged in such insurrection have," 
&c. That of August 16, 1861, 12 U. S. Stat., 1262, II. 
Reb. Rec. 532, Macpherson, 149, prohibiting commercial 
intercourse with certain States, recites, " Whereas such 
insurrection has since broken out and yet exists in the 
States of Virginia," &c, "and whereas the insurgents in 
all the said States claim to act under the authority thereof, 
and such claim is not disclaimed or repudiated by the 
persons exercising the functions of government in such 
State or States, or in the part or parts thereof in which 
such combinations exist, nor has such insurrection been 
suppressed in said States." 

But that of July 1, 1862, 12 U. S. Stat, 1266, V. Reb. 
Rec. 296, Macpherson, 150, declaring that certain " States 
and parts of States are now in insurrection and rebel- 
lion," follows the phraseology of the Act of Congress of 
June 7, 1862, 13 U. S. Stat. 730. His proclamation of 
June 15, 1863, 13 U. S. Stat. 733, VII. Reb. Rec. 309, 
recites, " Whereas armed insurrectionary combinations now 
existing in several of the States are threatening," &c. 
That of December 8, 1863, 13 U. S. Stat. 737, VIII. Reb. 
Rec. 295, Macpherson, 147, reciting, " Whereas a rebellion 
exists, whereby the loyal State governments of several 
States have for a long time been subverted," &c. has 
already been noticed. 1 

Mr. Lincoln's later proclamations always designate the 

1 Ante, p. 35. 



56 FOREIGN RECOGNITION OF STATES. 

View taken by the English Government. 

inhabitants as distinguished from the States, as the parties 
chargeable. In that of July 8, 1864, referring to the bill 
herein already described, 1 which had failed to receive his sig- 
nature, he speaks of it as containing, " among other things 
a plan for restoring the States in rebellion to their proper 
practical relation in the Union." But he seems to avoid 
using the same expression when giving Iris own view. 

The internal public law, or constitution of any country, 
is matter of concern and recognition to foreign powers, just 
so far as they may be obliged to notice the facts on which 
it rests. The aspect in which a nation may seem to pre- 
sent itself, at any particular time, to the rest of the world, 
is therefore a material element in the establishment of its 
own conscious existence, as being the reflection of its own 
assertion of its internal structure. 

The position occupied by a country in its international 
relations, or as exhibited in its international diplomacy, is 
more directly connected with the executive than with any 
other department. As incidental, therefore, to Mr. Lin- 
coln's administration, it is here proper to notice that 
the British government, by the Queen's proclamation of 
neutrality, May 13, 1861, reciting " whereas hostilities 
have unhappily commenced between the government of 
the United States and certain States calling themselves the 
Confederate States of America," recognized, not merely a 
state of war, but the States as individually capable, by 
their political nature, of carrying on a war ; and that this 
policy was " immediately followed by similar declarations 
or silent acquiescence, by other nations." Grier, J. The 
Prize Cases, 2 Black, 669. 

The course taken by the British government at this 
juncture, excited much feeling at. the North. 2 But, as far 

1 Ante, p. 37. 

2 Much of this feeling was based on a presumed claim for sympathy as 
against " a slaveholder's rebellion." 



THEORY OF OUR NATIONAL EXISTENCE. 57 

President Johnson's View of the Belligerency. 

as I have been able to make out, it was chiefly on the 
ground that the action was precipitate ; as having 'been 
taken irrespectively of any knowledge of the actual mili- 
tary power of the southern forces. This circumstance, if 
admitted, showed more clearly the idea of the political 
existence of the States in the Union which was accepted 
in England. 1 

But I am not aware that in any exception taken at the 
time, the recognition of the States as the parties to the 
war was declared more objectionable than recognition of 
the insurgents as a belligerent party, in consequence of 
their actual military power. 

President Johnson, in his proclamation of May 10, 1865, 
13 U. S. Stat., 757, recites, " Whereas the President of the 
United States [Mr. Lincoln] by his proclamation of April 
19, 1861, did declare certain States therein mentioned, in 
insurrection against the Government of the United States, 
and whereas armed resistance to the authority of the 
Government in the said insurrectionary States," &c. It is 
not in the least probable that Mr. Johnson had any inten- 
tion to misstate his predecessor's views. So it would seem 
that he had not understood Mr. Lincoln's language, in that 
instance, as indicating his intention to avoid recognition of 

1 The wording of Lord John Russell's dispatch, May 6, 1861, to Lord 
Lj^ons, is, — " a civil war which has broken out between the several States of 
the late Union. For the present, at least, those States have separated into 
distinct confederacies, and, as such, are carrying on war against each other." 
Bemis, On the Hasty Recognition of Rebel Belligerency, pp. 12, 13. In the 
letter to the London Times, March 18, 1861, signed Historicus, it is said, 
ib. 51, " The Confederate States had belligerent rights by the mere fact of 
being at war. They acquired these rights immediately that a state of hostil- 
ities arose by the North going to war with them, or their going to war with 
the North. Their title to belligerent rights was derived not from the con- 
cession of any foreign power, but from the established code of the law of 
nations. . . . They went to war of their own will and pleasure, and from 
the moment they did so, the enjoyment of belligerent rights accrued to 
them as a matter of course." 

If there was weakness in the position of the English government, in a 
diplomatic relation, it was from not resting plainly on this single basis. 



58 WAR LEGISLATION OF CONGRESS. 

Language of Congress on Belligerency. 

the States as the parties chargeable with rebellion and 
treason. In his proclamation of August 20, 1866, 14 U. S. 
Stat. (39th Cong.) append, iv., he recited the series of 
proclamations by Mr. Lincoln, from that of April 19, 1861, 
to that of September 15, 1863, and also refers to resolu- 
tions of the House of Representatives of July 22 and 25, 
1861, as speaking of " a civil war forced upon the country 
by the disunionists of the southern States now in revolt 
against the constitutional government." But he does not 
appear to have noticed their language as discriminating 
between the States and citizens or inhabitants, as the parties 
in rebellion. 

A variation of language corresponding with that in the 
proclamations of the executive may be traceable in Acts of 
Congress from 1861 to 1866. 

In that of July 13, 1861, entitled An Act further to pro- 
vide for the collection of duties on imports and for other 
purposes, 12 U. S. Stat., p. 255, it would seem that special 
care had been taken to avoid mention of the States as 
parties in rebellion. 1 In the first section it reads "by 
reason of unlawful combinations of persons in opposition 
to the United States become impracticable," &c. In § 5 : 
" When said insurgents claim to act under the authority 
of any State or States and such claim is not disclaimed or 
repudiated by the persons exercising the functions of gov- 
ernment in such State or States ... it shall be lawfj.il for 
the President, by proclamation, to declare that the inhab- 
itants of such State, or any section or part thereof, where 
such insurrection exists, are in a state of insurrection 
against the United States." 

1 But Mr. Justice Nelson in his dissenting opinion in the Prize cases, 2 
Black, 698, (December term, 1862, nearly one year and a half later) referred 
to this act as recognizing war between the government and " States in 
insurrection." Similar reference to the tenor of this act, alone or in con- 
nection with later acts, on matters relating to the rebellion, may be found 
injudicial opinions delivered in later cases. 



THEORY OF OUR NATIONAL EXISTENCE. 59 

Popular recognition of States as the Parties. 

Nor are the States designated as the parties in the act 
of July 29, 1861, 12 U. S. Stat. p. 281, An Act to provide 
for the suppression of Rebellion and Resistance to the Laws 
of the United States ; nor in that of July 31, 1861, 12 U. S. 
Stat., p. 283, For giving arms to loyal citizens of the States of 
which the inhabitants now are or hereafter may be in rebellion, 
&c. ; nor in that of July 17, 1862, 12 U. S. Stat., p. 589, 
An Act to suppress insurrection, to punish treason and rebel- 
lion, to seize and confiscate the property of rebels, and for 
other purposes. And such, generally speaking, is the tenor 
of all later acts during Mr. Lincoln's administration ; ex- 
cept that of March 12, 1863,12 U. S. Stat., p. 820, entitled 
An Act to provide for the collection of abandoned property, 
and for the prevention of fraud in insurrectionary districts 
within the United States ; where reference is made to " in- 
surrectionary districts," and to " any State or Territory, 
or any portion of any State or Territory, of the United 
States designated as in insurrection against," &c, &c, "by 
the President's proclamation of July 1, 1862 ; and except- 
ing also the supplementary act of July 2, 1864, 13 U. S. 
Stat., 375, where the terms " insurrectionary States " and 
" States in insurrection" are for the first time employed. 

Coming to expressions used by Congress during Mr. 
Johnson's presidential term, we may notice the three Acts 
commonly called the Reconstruction Acts, ante, p. 40, in 
each of which the phrase " rebel States of Virginia," &c, 
occurs. 

Indeed, it may be stated broadly, that the people of the 
Northern States, without distinction of party, from the 
beginning of the rebellion to the present, have shown, in 
every form in which public and general opinion can be 
expressed, that they have regarded the eleven Southern 
States as the parties in the war and as liable, as States, — 
political members of the Union, — to the consequences of 
their action. 



60 THE QUESTION OF TEEASON. 

United States v. Greathouse : In the Tenth Circuit. 

This view is, of course, that which the people of these 
eleven States have always maintained ; while, in accepting 
it, neither the government of the United States, nor the 
people of the Northern States, nor the party which has 
especially sustained the administration, during the war 
and afterwards, have thought themselves open to self- 
blame, or to criticism from any quarter, for inconsistency 
in denouncing individual persons, citizens of those States, 
as chargeable with treason as a legal crime. 

Whatever degree of doubt might have prevailed at the 
outbreak of the insurrection, rebellion, or civil war, as to 
the duty of the private citizen, in the supposed case that 
his own State and section should attempt secession, it was, 
probably, believed universally that, if the government of 
the United States should be re-established in the South, 
there would then appear some clear exposition of the law 
of treason ; applicable in the future, at least. 

In the United States v. Greathouse, 2 Abbott's U. S. 
Rep. 380, 10th Circuit, California, October T. 1863, the 
defendant, a citizen of Kentucky, with another citizen of 
the same State, and with a British subject, was indicted 
under the Act of July 17, 1862, 12 U. S. Stat. 590, for 
treason, by " levying war against the United States, and 
giving aid and comfort to their enemies," in having 
equipped, in the port of San Francisco, and attempted to 
cruise with, a vessel carrying a letter of marque, from 
Mr. Davis, as President of the Confederacy. 

On the trial of the indictment before Judges Field and 
Hoffman, Judge Field said in his charge to the jury, — 

"As matter of policy and humanity, the government of the 
United States has treated the citizens of the so-called Confederate 
States, taken in open hostilities, as prisoners of war, and has thus 
exempted them from trial for violation of its municipal laws. But 
the courts have no sucht dispensing power ; they can only enforce 
the laws as they find them upon the statute book. They cannot 



THEORY OF OUR NATIONAL EXISTENCE. 61 

United States v. Greathouse : In the Tenth Circuit. 

treat any new government as having authority to issue commissions 
or letters of marque, which will afford protection to its citizens, 
until the legislative and executive departments have recognized its 
existence. The judiciary follows the political department of the 
government in these particulars. 1 By that department, the rules of 
war have been applied only in special cases ; and, notwithstanding 
the application, Congress has legislated, in numerous instances, for 
the punishment of all parties engaged in, or rendering assistance in 
any way to, the existing rebellion. The law under which the de- 
fendants are indicted was passed after captives in war had been 
treated and exchanged as prisoners of war in numerous instances. 

" But even if full belligerent rights had been conceded to the 
Confederate States, such rights could not be invoked for the protec- 
tion of persons entering within the limits of States which have 
never seceded, and secretly getting up hostile expeditions against 
our government, and its authority and laws. The local and tem- 
porary allegiance, which every one — citizen or alien — owes to 
the government under which he at the time lives, is sufficient to 
subject him to the penalties of treason." 

It will be noticed that, in this instance, there was no 
defendant charged with treason who was in the situation, 
as a citizen of one of the States of the Confederacy, to 
plead his relation to such State in denial of liability" 
under this indictment. The case was such as might occur 
during a war with any foreign nation. 2 

1 This case would be important mainly as it might indicate some neces- 
sary limitation to that recognition of the rebel belligerency which was 
accorded by the government of the United States, and how it differed, in- 
trinsically, from that which was declared by the British government, ante, 
p. 56. But, in strictness, this case would not be a precedent, on the ques- 
tion of treason as raised on capture of citizens of any of the States of the 
Confederacy on a privateer which might have issued from a port of the Con- 
federacy, or from a foreign port, under such a commission. 

2 A belligerent being recognized, the courts are obliged to determine the 
application of the customary law of international warfare. In Ford v. 
Surget, 7 Otto, 97 U. S. 594, the defendant, a citizen of Louisiana, who 
had destroyed the plaintiff's cotton by order of the Confederate military 
authorities, was held exempt from responsibility. The opinion of the court, 
by Mr. Justice Harlan, and a separate opinion by Mr. Justice Clifford, con- 
curring in the judgment, are each of great historical interest, as giving 



62 THE QUESTION OF TKEAS02T. 

Confiscation ; For Enemies, or for Traitors ? 

More material to the questions raised by the Rebellion 
is the following portion of Judge Field's charge, — 

" The term ' enemies,' as used in the second clause, according to 
its settled meaning at the time the Constitution was adopted, ap- 
plies only to the subjects of a foreign power in a state of open hos- 
tility with us. It does not embrace rebels in insurrection against 
their own government. An enemy is always the subject of a 
foreign power who owes no allegiance to our government or coun- 
try. We may omit, therefore, all consideration of this second 
clause in the constitutional definition of treason. To convict the 
defendants they must be brought within the first clause of the defi- 
nition. They must be shown to have committed acts which amount 
to a levying war against the United States." 

There are certain cases in the reports which may, or 
may not, be generally supposed to show that the crime of 
treason against the United States had been judicially fixed 
upon persons, citizens of some State of the Confederacy. 
These are the cases arising under several Acts of Congress 
passed during the war and generally known as Confisca- 
tion Acts, which are mainly that of August 6, 1861, 12 
U. S. Stat. 319, entitled An Act to confiscate property used 
for insurrectionary purposes, and the Acts of July IT, 
1862, and of March 12, 1863, already named (ante, p. 59,) 
and the Act of July 2, 1864, 13 U. S. Stat. 375, entitled, " An 
Act in addition to the several Acts concerning commercial in- 
tercourse between loyal and insurrectionary States, and to 
provide for the collection of captured and abandoned prop- 
erty, and for the prevention of frauds in States declared in 
insurrection," the third section of which extends the first 

general reviews of the decisions on the effect of the state of war ; but also, 
especially, as they may indicate a distinction, which is discernible in many 
of the earlier opinions, in identifying the party or person to whom the bel- 
ligerent capacity was attributed. One opinion seems to find such party in a 
de facto military organization, while the other appears to recognize the eleven 
States, in their political capacity, as the belligerent. 



THEORY OF OUJR NATIONAL EXISTENCE. 63 

Confiscation. Opinion by Chase, C. J. 

section of the Act of March 12, 1863, to include the de- 
scriptions of property mentioned in the Act of July 17, 
1862. 1 

The case, Union Ins. Co. v. United States, 6 Wall. 759, 
arose on the seizure under the Act of 1861, of real estate, 
located in New Orleans, and its condemnation in the Dis- 
trict Court on proceedings following the practice in admi- 
ralty, 2 for having been leased to parties who established on 
the premises a manufactory of arms for the rebel govern- 
ment." 

In the case of Armstrong's Foundry, 6 Wall. 766, the 
property, real estate in New Orleans, had, under the same 
statute, been seized as forfeited to the United States, by 
reason of having been used, under lease from the owner, 
in aid of the rebellion. Armstrong, as claimant in the 
District Court, 'pleaded the amnesty offered by President 
Lincoln, and his acceptance of it and compliance with the 
terms." The plea was rejected, and a decree of condemna- 
tion was rendered. On the appeal to the Supreme Court, 
Mr. Chief Justice Chase delivered the opinion, and said : — 

" It was insisted, in argument, that the pardon pleaded by the 
appellant cannot avail to relieve him from the forfeiture of the 
property seized, because the liability to seizure arose, under the stat- 
ute, from the mode in which the property was employed, and was 
not to be regarded as a penal consequence of the act of the owner. 
We are unable to concur in this view. We think it clear that the 

1 The same section provides, " that all property, real and personal, de- 
scribed in the Acts to which this is an addition, shall be regarded as aban- 
doned when the lawful owner thereof shall be voluntarily absent therefrom, 
and engaged, either in arms or otherwise, in aiding or encouraging the re- 
bellion." 

2 In this instance the case was remanded by the Supreme Court to the 
District Court for a new trial ; on the ground that, the property seized hav- 
ing been real estate, the proceedings, on the new trial, must be conformed in 
respect to trial by jury and exceptions to evidence, to the course of proceed- 
ing by information, on the common law side of the court in cases of seizure 
upon land. 6 Wall. 766 ; also lb. 769, and 8 Wall. 508. 



64 THE QUESTION OF TREASON. 

The Cotton Cases. Opinion by Chase, C. J. 

statute regarded the consent of the owner to the employment of his 
property in aid of the rebellion as an offence, and inflicted forfeit- 
ure's a penalty. The general pardon of Armstrong, therefore, 
relieved him of so much of the penalty as accrued to the United 
States." lb. 769. 

Mr. Justice Miller dissented, without delivering any 
opinion. 

The majority of the cases of the same class were mainly 
determined under the Act of July 17, 1862. 2 

In the case of Mrs. Alexander's cotton, 2 Wall. 404, 
the property had been seized in the spring of 1864, by a 
naval or military force, at her plantation residence on the 
Red River, had been taken to Cairo, 111., and libelled as 
prize of war and as matter of maritime capture. The de- 

1 In a note to this case, lb. 770, the same doctrine is stated to have gov- 
erned other cases. The distinction from cases of maritime capture is pointed 
out, where the proclamation did not restore the owner's loss ; citing the 
" Gray Jacket," 5 Wall. 342, 348. 

2 The title is given ante, p. 59. The first four sections provide for the pun- 
ishment of treason against the United States, on being adjudged guilty thereof, 
by death or by fine and imprisonment ; enacting also that "all his slaves, if 
any, shall be declared and made free;" and for the punishment of aiding or 
engaging in any rebellion. In section '5 it is provided, " That, to insure the 
speedy termination of the present rebellion, it shall be the duty of the Pres- 
ident of the United States to cause the seizure of all the estate and property, 
money, stocks, credits, and effects of the persons hereinafter named in this 
section, and apply and use the same and the proceeds thereof for the sup- 
port of the army of the United States ; that is to say." Five classes of 
persons, office-holders of the Confederate States, are enumerated ; and 
sixthly, " any person who, owning property in any loyal State or Terri- 
tory, or in the District of Columbia, shall hereafter assist and give aid 
and comfort to such rebellion." Sect. 6 makes it the duty of the President 
to " seize the property of persons who, being engaged in armed rebellion," 
&c. Sect. 7 provides " and if said property . . . shall be found to have be- 
longed to a person engaged in the rebellion, or who has given aid and com- 
fort thereto, the same shall be condemned as enemies' property, and become 
the property of the United States." An analysis of the statute is given in 
Day v. Micou, 18 Wall. 156. 

On the same date, was passed a joint resolution, 12 Stat. U S. 627, ex- 
planatory of this Act, which contains this clause : " Nor shall any punish- 
ment or proceedings under said Act be so construed as to work a forfeiture 
of the real estate of the offender beyond his natural life." 



THEORY OF OUR NATIONAL EXISTENCE. 65 

Mrs. Alexander's cotton. Opinion by Chase, C. J. 

cree of the District Court restored the property on her 
claim. In the Supreme Court the United States Attorney, 
on behalf of the captors, asked for the reversal of this de- 
cree and for the condemnation of the property as maritime 
prize. lb. 418. The court reversed the decree of the 
District Court which had restored the property ; but it 
denied the claim for prize, and directed the proceeds of 
the cotton to be paid into the national treasury, under the 
provisions of the Act of Congress. 1 

The opinion of the court, unanimous, it seems, was de- 
livered by Mr. Chief Justice Chase. In this it is said : — 

" This court cannot inquire into the personal character and 
dispositions of individual inhabitants of enemies' territory. We 
must be governed by the principle of public law, so often 
announced from this bench as applicable alike to civil and inter- 
national wars, that all the people of each State or district in insur- 
rection against the United States, must be regarded as enemies 
until by action of the legislature and the executive, 2 or other- 
wise, that relation is thoroughly and permanently changed. . . . 
Being enemies' property, the cotton was liable to capture and con- 
fiscation by the adverse party. 3 It is true, this rule, as to property 
on land, has received very important qualifications, from usage, from 
the reasonings of enlightened publicists, and from judicial decisions. 
It may now be regarded as substantially restricted to ' special cases 

1 In the opinion of the court, this is spoken of as a statute favorable to 
the enemies who come within its scope, the decree being " in order that the 
claimant, when the rebellion is suppressed, or she has been able to leave the 
rebel regions, may have the opportunity to bring her suit in the Court of 
Claims, and, on making the proof required by the Act, have the proper de- 
cree." (lb. p. 423.) See also United States v. Padelford, 9 Wall. 543, and 
United States v. Klein, 13 Wall. 136 ; Haycroft v. The United States, 22 Wall. 
81 ; the opinions also by Chase, C. J., in which the government is supposed to 
be made a trustee : so that when the owner whose property has been seized as 
alien eneiny's should prove that he was not a traitor, or had been amnestied as 
rebel, its proceeds, deducting expenses,* should be returned to him. In 
United States v. Klein, Miller and Bradley, JJ., dissented on this. See post- 

2 That is, apparently, of what in other cases is denominated " the political 
department " of the government. See ante, p. 19, and note. 

3 Citing Prize Cases, 2 Black, 687. 



66 THE QUESTION OF TEEASON. 

Sirs. Alexander's cotton. Opinion by Chase, C. J. 

dictated by the necessary operation of war/ 1 and as excluding, in 
general, ' the seizure of the private property of pacific persons for 
the sake of gain.' 2 The commanding general may determine in 
what special cases its more stringent application is required 
by military emergencies ; while considerations of public policy and 
positive provisions of law, and the general spirit of legislation, must 
indicate the cases in which its application may be properly denied 
to the property of non-combatant enemies. 

" In the case before us, the capture seems to have been justified 
by the peculiar character of the property and by legislation. It is 
well known that cotton has constituted the chief reliance of the 
rebels for means to purchase the munitions of war in Europe. . . . 
Rather than permit it to come into the possession of the national 
troops, the rebel government has everywhere devoted it, however 
owned, to destruction. 3 . . . The rebels regard it as one of their main 
sinews of war; and no principle of equity or just policy required, 
when the national occupation was itself precarious, that it should 
be spared from capture and allowed to remain, in case of the with- 
drawal of the Union troops, an element of strength to the rebellion. 

" And the capture was justified by legislation as well as by pub- 
lic policy. The act of Congress to confiscate property used for in- 
surrectionary purposes, approved August 6, 1861, declares all prop- 
erty employed in aid of the rebellion with consent of the owners, to 
be lawful subject of prize and capture wherever found. (12 Stat. 
U. S. 319.) And it further provided by the act to suppress insur- 
rection, and for other purposes, approved July 17, 1862 (Id. 591), 
that the property of persons who had aided the rebellion and should 
not return to allegiance after the President's warning, should be 
seized and confiscated. It is in evidence that Mrs. Alexander was 
a rebel enemy at the time of the enactment of this act. . . . Mrs. 
Alexander, being now a resident in enemy territory and, in law, an 
enemy, can have no standing in any court of the United States, so 
long as that relation shall exist. 4 Whatever might have been the 
effect of the amnesty had she removed to a loyal State after taking 

1 Cites 1 Kent, 92. 2 Cites Id. 93. 

s See Ford v. Surget, 7 Otto, 595, 609; ante, p. 61, note. 

4 In 2 Brightly's Digest (1869), 276, note to Insurrection, "The inhab- 
itants of States in rebellion against the government are to be considered alien 
enemies, and as such disqualified from suing in the courts of the loyal States. 



THEORY OF OUR NATIONAL EXISTENCE. 67 

Captured and Abandoned Property. 

the oath, it can have none on her relation as enemy voluntarily re- 
sumed by continued residence and interest." (lb. 421.) 

The same views were reaffirmed by Chief Justice Chase 
in opinions delivered for the court, in United States v. 
Padelford, 9 Wall, 531, and United States v. Klein, 13 
Wall. 128, where the disposition of the property seized, as 
between the United States Treasury and the former owner 
was considered under the Act of 12 March, 1863, " The 
Captured and Abandoned Property " Act. 

In United States v. Anderson, 9 Wall. 56, the unani- 
mous opinion of the court was delivered by Mr. Justice 
Davis, who gave this view of the nature of that statute : l — 

" During the progress of the war, it was expected that our forces 
in the field would capture property, and as the enemy retreated, 
that property would remain in the country without apparent own- 
ership, which should be collected and disposed of. In this condi- 
tion of things, Congress acted. While providing foi the disposition 
of this captured and abandoned property, Congress recognized the 
status of the loyal Southern people, and distinguished between prop- 

Bouneau v. Dinsmore, 24 Law Rep. 381. Nor can they appear as claimants 
in a case of prize. United States v. The Isaac Hammett, 4 West. L. Mo. 
486 ; s. c. 10 Pitts. L. J. 97 ; United States v. The Allegheny, lb. 276 ; United 
States v. 100 Barrels, &c, Law R. 735." 

1 In the first section of tins act provision was made for " agents to receive 
and collect all abandoned or captured property in any State or territory, or 
any portion of any State or territory of tlie United States designated as in 
insurrection against the lawful government of the United States by the 
proclamation of the President of July 1, 1862. Provided, that such prop- 
erty shall not include any kind or description which has been used, or which 
was intended to be used, for waging or carrying on war against the United 
States, such as arms, ordnance,, ships, steamboats, or other water craft, and 
the furniture, forage, military supplies, or munitions of war." In the third 
section, that " any person claiming to have been the owner of any such 
abandoned or captured property, may at any time within two years after the 
suppression of the rebellion, prefer his claim to the proceeds thereof in the 
Court of Claims, and on proof to the satisfaction of the Court of his owner- 
ship of said property, of his right to the proceeds thereof, and that he has 
never given any aid or comfort to the present rebellion, to receive the resi- 
due of said proceeds, after deduction," &c. 



68 THE QUESTION OF TREASON. 

McVeigh v. United States. Opinion by Swayne, J. 

erty owned by them and property of the disloyal. It was not re- 
quired to do this, for all the property obtained in this manner could, 
by proper proceedings, have been appropriated to the necessities of 
the war. But Congress did not think proper to do this. In a 
spirit of liberality, it constituted the government a trustee for so 
much of this property as belonged to the faithful Southern peo- 
ple," &c. 

The earlier position, taken in Mrs. Alexander's cotton, 
as to the inability of the owner to appear and defend was 
abandoned in later cases. 1 

In McVeigh v. United States, 11 Wall. 259, the plain- 
tiff, who had held civil and military offices under the Con 
fecleracy, and, apparently, taken no action on the President's 
proclamation, appeared by counsel, and made a claim to 
property which had been libelled, and filed an answer. In 
the District Court, on motion, the claim, answer, and ap- 
pearance were stricken from the files ; the default of all 
persons was taken, and a decree was rendered for the con- 
demnation and sale of the property. This decree was 
affirmed in the Circuit Court, from which it was brought 
before the Supreme Court, on writ of error. Id. 261. The 
court reversed the judgment of the District Court, and the 
cause was " remanded to the Circuit Court, with directions 
to proceed in it in conformity to law." 

Mr. Justice Swavne, delivering the unanimous opinion 
of the court, said : — 

1 On p. 256, 11 Wall, the reporter notes that the four cases there follow- 
ing ; viz., Garnet v. United States, McVeigh v. Same, Miller v. Same, 
and Tyler v. Defrees, arose under the two acts of 1861, 1862, " popularly 
known as the Confiscation Acts. Along with one or two others, they were 
argued at the last term; but, after being taken into advisement, were, at the 
close of it, ordered to be reargued at this. They were now fully argued 
very much together. In the first of them nothing relating to confiscation 
was reached ; the case going off on a point of jurisdiction. In the judg- 
ment of none of them did the Chief Justice [Chase] or Mr. Justice Xelson 
participate." 



THEORY OF OUR NATIONAL EXISTENCE. 69 

Miller v. United States. 

" It is objected that McVeigh was incompetent to sue out this 
writ of error. His alleged criminality lies at the foundation of the 
proceeding. It was averred in the libel that he was the owner of 
the property described, and that he was guilty of the offences 
charged, which rendered it liable to forfeiture. The questions of 
his guilt and ownership were therefore fundamental in the case. . . 
The case is wholly unlike a proceeding purely in rem. . . . The 
order, in effect, denied the respondent a hearing. It is alleged that 
he was in the position of an alien enemy, and hence could have no 
locus standi in that forum. If assailed there, he could defend there. 
The liability and the right are inseparable. A different result would 
be a blot upon our jurisprudence and civilization. We cannot hesi- 
tate or doubt on the subject. It would be contrary to the first 
principles of the social compact and of the right administration of 
justice. 1 

" Whether the legal status of the plaintiff in error was, or was 
not, that of an alien enemy, is a point not necessary to be consid- 
ered ; because, apart from the views we have expressed, conceding 
the fact to be so, the consequences assumed would by no means 
follow." lb. 267. 

The case which follows in the volume, Miller v. United 
States, 11 Wall. 268, is the leading case on this aspect of 
the subject. The plaintiff in error, in this case, likewise, 
was an official in the civil and military service of the Con- 
federates. His competency to sue out the writ was main- 
tained on the principle of the last case. lb. 293. In this 
case the decree of the District Court, confiscating certain 
stock held by the plaintiff in railways located in the 
Northern States, was affirmed by a majority of the court 

1 This very decided language, from a unanimous opinion of the court, 
was cited by Mr. Justice Field when delivering the opinion of the court in 
the later case of Windsor v. MaeVeigh, 3 Otto, 93 U. S. 277, in which in- 
stance a majority of the justices again declared the invalidity of a con- 
demnation of property as by default, after the claimant's appearance and 
answer had been stricken out in the District Court, on proceedings instituted 
under the Act of July 17, 1862. But in this case Justices Miller, Bradley, 
and Hunt dissented. lb. 284. 



70 THE QUESTION OF TREASON". 

Miller v. United States. Opinion by Strong, J. 

in a very full opinion by Mr. Justice Strong ; in which it 
was said, lb. 304 : — 

" It remains to consider the objection urged on behalf of the 
plaintiff in error, that the acts of Congress, under which these pro- 
ceedings to confiscate the stock have been taken, are not warranted 
by the Constitution, and that they are in conflict with some of its 
provisions. The objection starts with the assumption, that the 
purpose of the acts was to punish offences against the sovereignty 
of the United States, and that they are merely statutes against 
crimes. If this were a correct assumption ; if the act of 1861, and 
the 5th, 6th, and 7th sections of the act of July 17, 1862, were 
municipal regulations only, there would be force in the objection 
that Congress has disregarded the restrictions of the 5th and 6th 
amendments of the Constitution. Those restrictions, so far as 
material to the argument, are, that no person shall be held to 
answer for a capital, or otherwise infamous crime, unless on pre- 
sentment or indictment of a grand jury ; that no person shall be 
deprived of his property without due process of law, and that in all 
criminal prosecutions the accused shall enjoy the right to a speedy 
and public trial by an impartial jury of the State and district 
wherein the crime shall have been committed. But if the assump- 
tion of the plaintiff in error is not well made ; if the statutes were 
not enacted under the municipal power of Congress to legislate for 
the punishment of crimes against the sovereignty of the United 
States ; if, on the contrary, they are an exercise of the war powers 
of the government, — it is clear they are not affected by the restric- 
tions imposed by the 5th and 6th amendments. This we under- 
stand to have been conceded on the argument. The question, 
therefore, is, whether the action of Congress was a legitimate 
exercise of the war power." To. 305. 

The opinion proceeds to set forth the doctrines, or 
usage, of international warfare, as being completely appli- 
cable in the circumstances of this case. Afterwards it is 
said : — 

"It is hardly contended that the act of 1861 was enacted in 
virtue of the sovereign rights of the government. It defined no crime ; 
it imposed no penalty. It declared nothing unlawful. It was aimed 
exclusively at the seizure and confiscation of property used, or 



THEORY OF OUR NATIONAL EXISTENCE. 71 

Miller v. United States. Dissenting Opinions. 

intended to be used, to aid, abet, or promote the rebellion, then a 
war, or to maintain the war against the government. It cannot 
be maintained that there is no power to seize property actually 
employed in furthering a war against the government, or intended 
to be thus employed. It is the act of 1862, the constitutionality of 
which has been principally assailed." lb. 308. 

Mr. Justice Strong proceeds to justify the purpose of 
" seizing and confiscating the property of rebels," as pro- 
vided in the 5th and following sections, on the ground of 
their being public enemies : — 

" The provisions made to carry out the purpose, viz., confisca- 
tion, were legitimate unless applied to others than enemies. It is 
argued, however, that the enactments were for the confiscation of 
property of rebels, designated as such, and that the law of nations 
allows confiscation only of enemy's property. But the argument 
overlooks the fact that the rebellion then existing was a war. 
And, if so, those engaged in it were public enemies. The statute 
referred to the rebellion then in progress. Whatever may be true 
in regard to a rebellion which does not rise to the magnitude of a 
war, it must be that when it has become a recognized war those 
who are engaged in it are to be regarded as enemies. And they 
are not the less such because they are also rebels. They are equally 
well designated as rebels or enemies. Regarded as descriptio per- 
sonarum, the words ' rebels' and 'enemies,' in such a state of things, 
are synonymous." lb. 309. 

In this case three justices dissented from the judgment 
of the court ; Mr. Justice Davis, only on the disposition 
of the case, though concurring in maintaining the con- 
stitutionality of the Acts of Congress. lb. 328. 

Justices Field and Clifford dissented in an opinion de- 
livered by the former, holding, — 

" It would seem clear, therefore, that the provisions of the Act 
were not passed in the exercise of the war powers of the govern- 
ment, but in the exercise of the municipal power of the government 
to legislate for the punishment of offences against the United 
States. It is the property of persons guilty of certain acts, wher- 



72 THE QUESTION OF TREASON. 

Tyler v. Defrees. Opinion by Miller, J. 

ever they may reside, in loyal or disloyal States, which the statute 
directs to be seized and confiscated." lb. 319. 

The dissenting Justice proceeds to argue the intention of 
the legislature from the history of the bill, it being known 
that it was modified in its passage, in view of constitu- 
tional objections insisted on by President Lincoln, lb. 320 ; 
and in view of the constitutionality of such legislature, 
says : — 

" It seems to me, that the reasoning which upholds the proceed- 
ings in this case works a complete revolution in our criminal juris- 
prudence, and establishes the doctrine that proceedings for the 
punishment of crime against the person of the offender may be 
disregarded, and proceedings for such punishment may be taken 
against his property alone, or that proceedings may be taken at the 
same time both against the person and the property, and thus a 
double punishment for the same offence be inflicted. 

" For these reasons, I am of opinion that the legislation upon 
which it is sought to uphold the judgment in this case is not war- 
ranted by the Constitution." lb. 323. 

In the case of Tyler v. Defrees, which follows in 11 
"Wall. p. 831, the majority reaffirm the doctrine of the last 
case ; while the same justices repeat their dissent on the 
constitutional question. The property confiscated was 
real estate in the District of Columbia. In this case the 
opinion of the court was delivered by Mr. Justice Miller, 
from which a few passages may well be given, as further 
illustrating the nature of the power attributed to Congress, 
and also the view taken of the parties belligerent. 

" Undoubtedly, by the individual whose property is thus seized 
and condemned for acts of hostility to his government, the course 
pursued would be scrutinized with an eye quick to detect errors, 
and it is not strange that this critical spirit should affect the ar- 
gument here. When to this is added the belief, long inculcated, 
that the Federal government, however strong in conflict with a 
foreign foe, lies manacled by the Constitution, and helpless at the 



THEOEY OF OUR NATIONAL EXISTENCE. 73 

* 

Tyler v. Defrees. Field and Clifford, JJ., dissent. 

feet of a domestic enemy, we need not be surprised that both the 
power of Congress to pass such a law as the one in question, and 
the capacities of the courts to enforce it, should meet with a stout 
denial. 

" But we do not believe that the Congress of the United States, 
to which is confided all the great powers essential to a perpetual 
union — the power to make war, to suppress insurrection, to levy 
taxes, to make rules concerning captures on land and on sea — is 
deprived of these powers when the necessity for their exercise is 
called for by domestic insurrection and internal civil war — when 
States, forgetting their constitutional obligations, make war against 
the nation, and confederate together for its destruction." . . . 

" As the act was designed to introduce the principle of confis- 
cating enemy property seized on land, like that seized on water, 
applying the confiscation, however, to the property of a limited 
class of enemies, instead of to all enemies, it was conceived that the 
proceeding should be, in its essential features, analogous to those 
which the courts of admiralty were accustomed to use in property 
captured at sea," &c. lb. 345. 

Mr. Justice Davis concurred in the judgment, though 
" not able to concur in all that was said by the court in 
preceding opinion." Mr. Justice Field again expressed 
his dissent, in an opinion in which Mr. Justice Clifford con- 
curred. Much of the discussion in this case was founded 
upon the question of procedure under the act. The 
validity of the statute having been mainly argued in Miller 
v. The United States. Bat on this point it is further said 
here by Mr. Justice Field, referring to that case, lb. 354 : — 

" In that dissenting opinion I expressly stated that it had been 
held that, when the late rebellion assumed the proportions of a 
territorial civil war, the inhabitants of the Confederate States and 
the inhabitants of the loyal States became reciprocally enemies to 
each other, and that the inhabitants of the Confederate States en- 
gaged in the rebellion, or giving aid and comfort thereto, were at 
the same time amenable to the municipal law as rebels, and that 
the correctness of this determination was not disputed; that the 
question was not as to the right of Congress to adopt either of these 



74 THE QUESTION OF TREASON". 

Tyler v. Defrees. Field, J., Dissenting Opinion. 

courses, but what course had Congress, by its legislation, authorized. 
It is indisputable, that whatever Congress may authorize to be 
done, by the law of nations, in the prosecution of war against an 
independent nation, it may authorize to be done when engaged in 
the prosecution of a territorial civil war against the domestic ene- 
mies of the United States. I contend only that the limitations 
which the law of nations has imposed in the conduct of war be- 
tween independent nations, should apply to and govern the United 
States in whatever war they may prosecute. I do not doubt, and 
never have doubted, for a moment, that the United States possess 
all the power necessary to suppress all insurrections, however 
formidable, and to make their authority respected and obeyed 
throughout the limits of the republic. But this recognition of the 
power of the government cannot be permitted to preclude a com- 
parison of all legislation, adopted to uphold its authority, with the 
Constitution. And in so comparing the Act of July 17, 1862, I 
am unable to find in that great instrument any sanction for the 
clauses in the act providing for the seizure and confiscation of the 
property of persons charged with particular criminal acts. I do not 
find it in the war powers of the government, for they sanction only 
the confiscation of the property of public enemies. I do not find it 
in the municipal power of the government to legislate for the 
punishment of crimes ; 1 for that is subject to limitations, which 
secure to the accused a trial by jury of his peers, and the right to 
be confronted with the witnesses against him. 

" It is true, as already stated, that enemies participating in the 
rebellion, or giving aid and comfort thereto, might have been 
treated as rebels and held amenable to the municipal law. Yet the 
terms ' enemies ' and ' rebels ' are not synonymous, even though the 
rebellion assumed the proportion of a territorial civil war. A 
permanent resident of the Confederacy was an enemy, although he 
may always have opposed the rebellion and remained loyal in his 
feelings and action to the national government. His position as an 
enemy was determined by his residence, and had nothing to do 

1 The bewildered Justice might well adapt for his learned associates the 
wondering wail of the Pinafore chorus : — 

" However could you do it ? 

Some day, no doubt, you'll rue it ! 
You mixed those children up, 
And not a creature knew it! " 



THEORY OF OUR NATIONAL EXISTENCE. 75 

United States v. Klein. 

with his personal disposition or conduct. But he was not a rebel, 
and could not have been prosecuted as such, unless he was per- 
sonally guilty of treasonable acts. 

" Congress well understood the distinction between enemies and 
rebels, and we are not justified in supposing that it intended to 
disregard this distinction in its legislation, even were that prac- 
ticable, as it is not?" 

In United States v. Klein, 13 Wall. 128, Chief Justice 
Chase says of this legislation : — 

" No titles were divested in the insurgent States, unless in pur- 
suance of a judgment rendered after due legal proceedings. The 
government recognized, to the fullest extent, the humane maxims of 
the modern law of nations, 1 which exempt private property of non- 
combatant enemies from capture as booty of war. Even the 
law of confiscation was sparingly applied. The cases were few 
indeed in' which the property of any, not engaged in actual hos- 
tilities, was subjected to seizure and sale. 

" The spirit which animated the government received special 
illustration from the act under which the present case arose. We 
have called the property taken into the custody of public officers 
under that act a peculiar species, and it was so. There is, so far as 
we are aware, no similar legislation mentioned in history." 

In this important case, the question arose under a proviso 
introduced into a bill making appropriations for the pay- 
ment of judgments of the Court of Claims, which became a 
law July 12, 1870 (16 U. S. Stat. 235), to prevent that 
court, and the Supreme Court on appeal, from giving that 
effect to a pardon by the President which had been sus- 
tained by the latter court in the then recent case, United 
States v. Padelford (Ap. 30, 1870), 9 Wall. 531. 

All the members of the court agreed in denying the 
validity of this legislation. 2 But Mr. Justice Miller, with 

1 This doctrine that the act was in mitigation of the severity of the bellig- 
erent right is much insisted on by Waite, Ch. J., in Lamar v. Browne, 2 
Otto, 194, 195. 

2 Opinion of the court. lb. 148. "Now it is clear that the legislature 
cannot change the effect of such a pardon any more than the executive can 



76 THE QUESTION OF TREASON. 

Latest Confiscation Cases. 

whom Mr. Justice Bradley concurred, delivered a dissenting 
opinion, relying on the position supposed to have been 
taken in United States v. Anderson, ante, p. 6T, as uphold- 
ing the idea of confiscation as punishment ; at least to the 
extent of giving a stringent construction to the provisions 
for restoration of property in the case of rebels claiming the 
benefit of amnesty. lb. 149. 

In Armstrong v. United States, and Pargoud v. United 
States, lb. 154, 156, Chief Justice Chase delivered the 
opinions of the court, without dissent, to the effect that 
the President's proclamation of Dec. 25, 1868, granting 
pardon and amnesty unconditionally, and without reserva- 
tion, to all who participated, directly or indirectly, in the 
late rebellion, relieves claimants of captured and abandoned 
property from making proof, as was required by the act, 
that the claimant never gave aid or comfort to the rebellion. 
It is unnecessary to prove adhesion to the United States, 
or personal pardon for taking part in the rebellion. 

In a number of cases, which, together, are named The 
Confiscation Cases, 20 Wall. 92, the questions presented 
related principally to matter of procedure. The doctrine 
that the proceedings are in rem, and " in no sense criminal 
proceedings, and they are not governed by the rules 
that prevail in respect to indictments or criminal informa- 
tions," is repeated by Mr. Justice Strong, lb. 104, and the 
doctrine of Miller v. United States re-affirmed ; Justices 
Field and Clifford adhering to their dissenting opinions in 
that case. lb. 113. 

change a law. Yet this is attempted hy the provision under consideration. 
The court is required to receive special pardons as evidence of guilt, and to 
treat them as null and void. It is required to disregard pardons granted by 
proclamation on condition, though the condition has been fulfilled, and to 
deny them their legal effect. This certainly impairs the executive authority, 
and directs the court to be instrumental to that end. . . . We repeat that it 
is impossible to believe that this provision was not inserted in the appropria- 
tion bill through inadvertence." In dissenting opinion : " is unconstitutional, 
so far as it attempts to prescribe to the judiciary the effect to be given to 
an act of pardon or amnesty by the President." 



THEORY OF OUR NATIONAL EXISTENCE. 77 

Latest Doctrine on Confiscation Acts. 

In Haycroft v. United States, 22 Wall. 81, the opinion 
of the court delivered by Chief Justice Chase is made up 
largely of quotations from his earlier opinions, in United 
States v. Padelford, and United States v. Klein, resting on 
the position that the Act of Congress in question was en- 
tirely founded on belligerent rights. The very term confis- 
cation is repudiated : — 

" There is here no question of confiscation. The title of the 
United States, whatever may be the rights it carries with it, is by 
authorized capture or appropriation of enemy's property on land. 
But the same statute which authorized the capture gave a right to 
certain persons to demand and receive restoration of their property 
taken." 

In Lamar v. Browne, 2 Otto, 187, and in Young v. United 
States, 1 7 Otto, 58, the judicial discrimination of cotton, as 
property particularly marked out for seizure under bellig- 
erent right, was very fully reasserted by the court in 
opinions delivered by Mr. Chief Justice Waite, saying : — 

" If they had had no cotton, they would not have had, after the first 
year or two, the means to support the war. To a very large extent, 
it furnished the munitions of war and kept the forces in the field. 
It was, therefore, hostile property, and legitimately the subject of 
capture on the territory of the enemy." 2 Otto, 194. 2 

1 In this case, the question presented on a claim for restitution for 
cotton seized, which had belonged to a non-resident alien who was known 
to have aided the rebellion, commercially, had the aspect of a case arising 
under private international law, in which connection it may be noticed fur- 
ther on. 

2 In this opinion it is stated : " As late as September 27, 1865, the govern- 
ment had not given up its claim of title to cotton belonging to exporting and 
importing companies, for, on that day, the Secretary of the Treasury issued 
a circular letter to the government agents, directing them to take charge of 
all such cotton, and treat it as property which was used to aid the rebellion, 
and, therefore, belonging to the United States. The military forces, there- 
fore, in taking possession of the cotton in controversy, were clearly acting 
within the general scope of their powers as an army still in possession of 
enemy territory, under orders from their superior." lb. 197. This seizure 
was in the autumn and December, 1865. 



78 THE QUESTION" OF TEE AS OK 

Latest Doctrine on Confiscation Acts. 

With reference to the foundation for this legislation, it 
is said in this opinion. lb. 195. 

" It is quite true that the United States, during the late war, 
occupied a peculiar position. They were, to borrow the language 
of one of the counsel for the plaintiff, both ' belligerent and consti- 
tutional sovereign ; ' but, for the enforcement of their constitutional 
rights against armed insurrection, they had all the powers of a most 
favored belligerent. They could act both as belligerent and sove- 
reign. As belligerent, they might enforce their authority by 
capture ; and, as sovereign, they might recall their revolted subjects 
to allegiance by pardon, and restoration to all rights, civil as 
well as political. All this they might do when, where, and as they 
chose. It was a matter entirely within their sovereign discretion. 

" It was in this spirit that the Abandoned and Captured Property 
Act was passed. It gave the Court of Claims authority to adjudi- 
cate between the belligerent sovereign and the citizen, and to deter- 
mine the question of capture or no' capture, if the owner or claimant 
appearing there had been loyal," &c. 

In Wallach et ah v. Van Riswick, 2 Otto (92 U. S.), 207, 
Mr. Justice Strong, delivering the opinion of the court, 
said : — 

" This act is an act for the confiscation of enemies' property. 
Its purpose, as well as its justification, was to strengthen the govern- 
ment and enfeeble the public enemy by taking from the adherents 
of that enemy the power to use their property in aid of the hostile 
cause." * 

In Conrad v. Waples, 6 Otto (96 U. S.), 283, Mr. Justice 
Field, delivering the opinion of the court, said : — 

" The law of July 17, 1862, so far as it related to the confiscation 
of property, applied only to the property of persons who thereafter 
might be guilty of acts of disloyalty and treason." 

In Burbank v. Conrad, 6 Otto (96 U. S.), 310, in a dis- 
senting opinion applying as well to the last case, Mr. Justice 
Clifford said : — 

" Congress intended by the Confiscation Act, when it was duly 
executed, to deprive the guilty owner of the means by which he 



THEORY OF OUR NATIONAL EXISTENCE. 79 



Shortridge v. Macon. Chase's Dictum. 



could aid the enemy, and it left him no estate that he could convey 
for that or any other purpose," citing Wallach v. Van Riswick, 2 
Otto, 92 U. S. 202. 

It appears then, from the language generally used by 
the Supreme Court in cases arising under the Confiscation 
Acts, that the majority of its members do not regard their 
provisions as punitive municipal law, nor consider the 
clauses of the fifth section of the act of July 17, 1862, as 
correspondent to the words in the title : " to punish treason 
and confiscate the property of rebels" however well devised 
for " other purposes." 1 

Judge Chase at the Circuit, June, 1867, for the District 
of North Carolina, in the case of Shortridge v. Macon, 1 
Abbott's U. S. Rep. 56 ; Chase's Decisions, 136, did say 
that the acts of violence against the civil and military 
officers of the government of the United States, which had 
occurred in North Carolina, corresponded in character with 
that " levying war against " the United States which, in 
the Constitution Art. III., § 3, had been defined as " trea- 
son against the United States." But as nobody then on 
trial before him was charged for such acts of violence, 
much less sentenced for treason on such a charge, the 
question, who the wicked individual was who then and 
there levied war, is judicially undetermined up to the 
present moment ; and, consequently, the judge's opinion 
as to the treasonable character of these acts is no more 
conclusive than that of anybody else. 

The indictment of Mr. Jefferson Davis for treason, in 
the United States Circuit Court for Virginia, March Term, 
1868, was dismissed after the issue of the Proclamation of 
general amnesty, by President Johnson, Dec. 25, 1868. 

1 Yet in U. S. Rev. St. § 5332, under marginal note " Punishment of 
treason," among cases cited are : Confiscation cases, 20 Wall. 92 ; Wallach 
it al. v. Van Riswick, 92 U. S. 202 ; Windsor v. MacVeigh, 93 U. S. 274. 



80 THE QUESTION" OF TEEASON. 

Case of Jefferson Davis. 

Chase's Decisions, 80 to 124. But from an indictment, 
alone, no legal principle can be derived. 1 

If then the cases under the so-called " Confiscation 
Acts," should be left out of view as not carrying out any 
punishment whatever, it may be said that there has been 
no judicial determination of any persons, being citizens 
of one of the eleven States compromised by the Rebellion, 
as guilty of, or liable to prosecution, sentence, and punish- 
ment for treason or rebellion, by reason of acts committed 
since the ordinances of secession were passed by those 
States. 2 

In most civilized countries, if the courts cannot settle, 
or will not settle, the law of allegiance and the crime of 
treason, it would seem trifling to look for instruction to 
any other source. Still, in following up the history of the 
judicial doctrine or no-doctrine on this point, it is well to 
look at the action of the Executive and of Congress, as we 
have in reference to State existence and belligerency. 

The language of Mr. Lincoln has already herein been 
cited as designating citizens and inhabitants, in distinction 

1 In Shortridge v. Macon, after stating the pretension that the State 
ordinance of secession " absolved the people of the State from all obliga- 
tions as citizens of the United States, and made it impossible to commit 
treason by levying war against the national government," Judge Chase 
said: "No elaborate discussion of the theoretical question thus presented 
seems now to be necessary. The question, as a practical one, is at rest, and 
is not likely to be revived. It is enough to say here that, in our judgment, 
the answer which it has received from events, is that which the soundest 
construction of the Constitution warrants and requires." Chase's Decisions, 
140. Is it to be inferred that, if Mr. Davis's indictment had gone to the jury, 
the judge would have charged that the question was " theoretical " or settled 
by the " issue of battle " only ? 

2 In Rev. Stat. U. S. ed. 1878, p. 25, the only cases cited for the consti- 
tutional definition of treason are the older ones, United States v. Insurgents, 
2 Dall. 335 ; United States v. Mitchell, 2 Dall. 348 ; Ex parte Bollman and 
Swartwout, 4 Cranch, 75 ; United States v. Aaron Burr, 4 Cranch, 469 ; and, 
for the clause limiting the punishment for treason, Bigelow v. Forest, 9 Wall. 
339 ; Day v. Micou, 18 Wall. 156 ; Ex parte Lange, 18 Wall. 163 ; Wallach 
et al. v. Van Biswick, 92 U. S. 202. 



THEORY OF OUR NATIONAL EXISTENCE. 81 

Action of the Executive and Legislature. 

from States, as the parties chargeable with insurrection, 
rebellion, and treason. 

That Mr. Johnson must have believed that rebellion 
and treason were chargeable against some citizens indi- 
vidually, must be inferred from his various Proclamations 
of Amnesty ; that of May 29, 1865, 12 U. S. Stat. 758, 
which makes exception, from its benefits, of certain per- 
sons or classes of persons, and that of Sept. 7, 1867, 15 
U. S. Stat. 699, that of July 4, 1868, ib. 702. His Procla- 
mation of Dec. 25, 1868, 15 U. S. Stat, 712, declares, — 

" To all and every person who directly or indirectly participated 
in the late insurrection or rebellion full pardon and amnesty for the 
offence of treason against the United States, or of adhering to their 
enemies, during the late civil war, with restoration of all rights and 
privileges," &c. 

If the so-called Confiscation Acts are to be left out of 
view, as not being intended for municipal penal legislation 
(jxnte, p. 79), the only legislation affecting private per- 
sons in view of past transactions, or which can be popu- 
larly supposed to have an application to anybody in view 
of past transactions called rebellion or insurrection, is to 
be found in the several Acts of Congress removing the 
disabilities declared in the 3d Section of the Fourteenth 
Amendment, adopted July 21, 1868. 1 

It may very probably be commonly held, in this connec- 

1 To be found among the Private Acts, such as An Act to relieve certain 
persons, frc, passed Dec. 14, 1869, 16 U. S. Stat. 607. " After the authority 
of government shall have been re-established over the rebellious districts, 
measures may be taken to punish individual criminals. The popular sense 
of outraged justice will embody itself in more or less stringent legislation 
against those who have brought civil war upon us. It would be surprising 
if extreme severity were not demanded by the supporters of the Union, in 
all sections of the country. Nothing short of a general bill of attainder, 
it is presumed, will fully satisfy some of the loyal people of the slave 
States." W. Whiting, The War Powers under the Constitution, 81, pub- 
lished in 1864. 



82 THE QUESTION OF TREASON. 

Third Section of the Fourteenth Amendment. 

tion, that, whatever may be the dependence of other coun- 
tries on courts of law to pass sentence on rebels or traitors, 
we have here, in virtue of a written constitution, a supe- 
rior method. It will perhaps be said, this Amendment 
was, itself, judgment by the supreme power-holder as to 
the persons then chargeable for treason and rebellion, as 
well as to the degree of punishment ; a judgment which 
precluded all ordinary judicial inquiry to determine any 
private persons as guilty of treason. 1 

It was on this construction of the Amendment, that Mr. 
Davis's motion to quash the indictment against himself was 
based, in these words, — 

u And the defendant alleges in bar of any proceedings upon the 
said indictments, or either of them, the penalties and disabilities 
denounced against him for his said alleged offence by the third 
section of the fourteenth article of the Constitution of the United 
States, forming an amendment to such Constitution, and he insists 
that any judicial proceeding to inflict any other or further pain, 
penalty, or punishment upon him for such alleged offence is not 
admissible by the Constitution and laws of the United States." 
Chase's Decisions, 85. 2 

1 Fourteenth Amendment, § 3. " No person shall be a Senator or Rep- 
resentative in Congress, or elector of President and Vice-President, or hold 
any office, civil or military, under the United States, or under any State, 
who having previously taken an oath as a member of Congress, or as an 
officer of the United States, or as a member of any State legislature, or as 
an executive or judicial officer of any State to support the Constitution of 
the United States, shall have engaged in insurrection or rebellion against 
the same, or given aid or comfort to the enemies thereof. But Congress 
may, by a vote of two-thirds of each House, remove such disability." De- 
clared to have been ratified by Proclamation of the Secretary of State, July 
28, 1868, under direction of joint resolution of Congress. See U. S. Rev. 
Statutes, p. 31, note. 

2 Under this construction and application of the Amendment, it would 
appear that, as Mr. Davis could not be fined, nor imprisoned, nor hung, 
under the statute, because already punished by disqualification from 
office under the Amendment, so, vice versa, he should not be disqualified from 
office, under the Amendment, if he had got fined, or imprisoned, or hung, 
under the Statute. 



THEORY OF OUR NATIONAL EXISTENCE. 83 

Case of Jefferson Davis. Chase's Dictum. 

After hearing arguments on both sides, ib. 85-122, the 
court — Judges Chase and Underwood — disagreed, and 
certified their disagreement to the Supreme Court of the 
United States. Ib. 123. 

" Whereupon the court adjourned. No further proceedings were 
had in the cause. The Proclamation of General Amnesty by the 
President of the United States, at the end of December, 1868, 
effectually disposed of the criminal prosecution, and the certificate 
of disagreement rests, among the records of the Supreme Court, 
undisturbed by a single motion for either a hearing or a dismissal. 
At a subsequent term of the Circuit Court, the indictments against 
Mr. Davis were, on motion of his counsel, dismissed." Ib. 124. 1 

To this the reporter adds, — 

"The Chief Justice [Chase] instructed the reporter to record 
him as having been of opinion, on the disagreement, that the indict- 
ment should be quashed, and all further proceedings barred by the 
effect of the Fourteenth Amendment." Ib. 124. 2 

Since each State, as a several State, and as one of the 
United States, exercised its authority in the adoption of 
this Amendment, it was like the legislative act of an inte- 
gral or consolidated sovereignty, and, as such, any legisla- 

1 Is it impertinent to ask, If the disqualification in the Amendment is 
intended as penalty for past offences, like fine, imprisonment, and hanging, 
under the statutes, why does not the amnesty relieve the persons affected, 
from the disability, as it would from sentence of loss of property, liberty, 
and life ? 

2 We have, therefore, the opinion of the Chief Justice that the disquali- 
fication was intended as punishment for the crime of engaging in insurrec- 
tion and rebellion against the United States, &c, and in Mr. Davis's motion 
to quash the indictment we have his own admission that he did things 
which, in the Amendment, are called by the same ugly names. But there 
is no judicial declaration, that the acts so charged and so admitted were 
criminal, to be found on the records; and neither Mr. Davis, nor any of his 
associates have ever done or said any thing equivalent to an admission to that 
effect. In the absence of all judicial inquiry, how is any particular person 
distinguishable as within the terms of this Amendment 1 Unless ordinary 
popular opinion — at the North — is supposed equivalent to judicial sentence 1 



84 THE QUESTION" OF TREASON". 

Operation of the Fourteenth Amendment. 

tive attribution of criminal character to antecedent acts 
may be conclusive. But it is legislation in the nature of 
Ex post -facto law, Bills of Attainder, Bills of Pains and 
Penalties, and Test Acts, which English-speaking com- 
munities have been educated to regard as peculiar to 
despotic governments. 1 

But if the doctrines of English civil liberty are not 
repudiated in this application of the Amendment to the 
private citizen, the interpretation claimed for it presents 
an anomaly, considered as public law determining the 
related powers of the general government and of the 
several States. 2 

The question, whether treason, in this instance, was 
chargeable on certain natural persons depended on the 
question whether they then stood in that relation to the 
United States, or the government of the United States, as 
citizens, that they could commit treason. If the Amend- 
ment is regarded as a judgment against the citizens of 
eleven States, forced by the government of the United 
States from those eleven States, as being parts of the 
United States, it is something worse than an anomaly. 
If regarded as constitutional demarcation of the distri- 
bution of power between the States united, and the States 
severally, to settle their respective claims on the allegiance 
of the citizen in the past, the Amendment presents a new 
phenomenon in the history of American constitutions. 

1 On the motion to quash the indictment in Mr. Davis's case, Mr. 
O'Conor maintained, " the provision is retrospective only. Penalties and 
punishments denounced by positive law are prima facie prospective only. 
The ordinary legislator is rarely empowered to give them a retrospect. 
But the sovereign authority, from which this provision emanated, was under 
no other than moral restraints in that respect, and it will be conceded that 
the disqualification is pronounced for offences previously committed. That 
intent cannot be denied, and the words employed are adequate to express it. 
But they are wholly incompetent to include past and future delinquents." 
Chase's Decisions, 113. 

2 Story, Comm. § 1344, 1345. 



THEORY OF OUR NATIONAL EXISTENCE. 85 

Operation of the Fourteenth Amendment. 

That the distribution of the powers of sovereignty be- 
tween the States severally and the States in union should, 
in cases arising under a written constitution, as law, be 
determined by a judiciary forming part of the general 
government, 1 was a political experiment without pre- 
cedent. But if this Amendment is taken for a judgment 
on the question of allegiance by the States in union against 
themselves separately, under a law therein declared, it is 
something difficult to define ; unless by comparison with 
the petitio principii in logic, or the Hibernian bull. 

A change in the distribution of sovereignty may have 
taken place, — whether by the military success of one 
claimant, or by voluntary cession of the former power- 
holder, is • immaterial for this inquiry; and this may 
now be defined in the Amendment. 2 But neither Amend- 
ment, nor cession, nor issue of battle, can be equivalent to 
judicial settlement of treason, as a question under the 
pre-existing distribution. 

The only volume strictly belonging to legal literature 
which has appeared since the war, and which might be 
cited in an exposition of the American law of treason, is 
the volume of decisions by Chief Justice Chase, edited by 
General Bradley T. Johnson ; generally cited as Chase's 
Decisions. 3 

1 This is on the supposition that this had been the original design. See 
ante, the note on p. 19. 

2 Mr. B. T. Johnson, in Preface to Chase's Decisions, IV., says that the 
late Chief Justice's " decisions on the questions growing out of the war . . . 
had settled the principles on which the new Constitution of the United States 
was to be administered under the new conditions of society." 

8 Reports of cases decided by Chief Justice Chase in the Circuit Court 
of the United States for the Fourth Circuit, during the years 1865 to 1869, 
both inclusive, in the Districts of Maryland, Virginia, North Carolina, and 
South Carolina. Revised and corrected by the Chief Justice : Containing an 
Appendix with the Constitution of the Confederate States of America, and the 
Conscription, Impressment, and Sequestration Acts of that Government. By 
Bradley T. Johnson, of the Virginia Bar. New York : Diossy & Company. 
1876. 



86 THE QUESTION OF TREASON. 

Johnson's Chase's Decisions. 

It appears from the preface that the Chief Justice had 
co-operated in Mr. Johnson's publication, and had " re- 
vised the manuscripts, making such corrections as he 
deemed necessary, which were generally merely verbal, 
and in the main consisted in softening the language and 
expressions used in alluding to the war. He struck out 
the words ' rebellion,' ' rebels,' ' insurrection,' and ' in- 
surgents,' and substituted the words ' civil war,' bellige- 
rents,' &c, wherever the sense of the text would permit, 
and instructed " Mr. Johnson " to do so wherever he had 
overlooked it." 1 

The expressions which have been " softened," are the 
most material part of the opinions, in their political bear- 
ing. Those which have been thus manipulated, after 
delivery, can hardly claim to be reported, as decisions judi- 
cially developed with the prestige of adjudged cases. If 
statements of political fact derive any authority from the 
judicial office, it must be with their original diction. 

This volume should rather be regarded as a joint expo- 
sition of the views of two private jurists, as to the political 
questions, than as a volume of decisions. Accepting all 
the statements in the preface, it is still doubtful whether 
Judge Chase intended to abandon any doctrine on the 
subjects connected with the war which may be gathered 
from his decisions in this volume, or reported elsewhere ; 
and how far the Chief Justice of the Supreme Court, and 
his reporter, distinguished not only as a lawyer, but also as 
a general officer in the military service of the recent Con- 

1 The question is whether Judge Chase intended to repudiate his own 
language in Shortridge v. Macon, Chase's Dec. 140. " Nor can we agree with 
some persons, distinguished by abilities and virtues, who insist that, when 
rebellion attains the proportions and assumes the character of civil war, it 
is purged of its treasonable character, and can only be punished by the de- 
feat of its armies, the disappointment of its hopes, and the calamities inci- 
dent to unsuccessful war." His reporter intimates that he did so intend. 
See ante, p. 52. 



THEORY OF OUR NATIONAL EXISTENCE. 87 

The two opposed Political Views. 

federacy, were in accord, as publicists, on the political 
question, does not appear. 

As stated in beginning this inquiry, judicial opinions 
on political questions have value, mainly, as testimony ; 
which may be compared with other evidence. A change 
of language, in reference to decided cases, where no new 
circumstances are alleged, is discrepancy, which weakens 
the force of either statement. 

Can it be supposed that, if the case of Texas v. White 
had been included in this volume, as had been proposed 
before the decease of the Chief Justice, he would have 
" softened expressions " which he had there used in the 
name of the court ? 

If any conflict of political doctrine may be traced on 
comparing the language of courts, presidents, Congress, 
or professional jurists, in reference to the position of the 
States, or the questions of belligerency, or of treason, as it 
has here been cited, it might readily be associated in our 
minds with that general conflict of public belief as to the 
nature of the union of the States which had existed at 
and from the time of the adoption of the Constitution ; 
leading to two views, more or less distinctly opposed, of 
the powers of the government of the United States and of 
the rights of the States, to which expression had been given 
not only from the Presidential chairs, in Congress, and on 
the Bench, but also in the rivalship of two great political 
parties, holding one or the other of these views, more or 
less constantly and consistently, and, above all, in the 
antagonism of sections distinguished as " the North," and 
" the South," culminating in a civil war, in which the 
affirmance and denial, on either hand, of one and the other 
of these views seemed to be involved. 

According to one of these two prevailing views, — the 
view held, in a general way, by one of these two parties, 
and one " political school," and more distinctly by " the 



STATE EIGHTS AND SECESSION. 



The Doctrine of Secession and its Opposite. 



South," — the operation of the Constitution, as law, in each 
several State is constantly dependent upon the continuing 
consent of such State. It was, as the obvious consequence 
of this proposition, that the right (faculty) of each State 
to nullify the operation of the laws of Congress within its 
own limits, and the right to secede — " the right of peace- 
able secession " — for any reason appearing sufficient to 
the State, or, for that matter, for no reason at all, 1 was 
asserted by the Southern States without much distinction 
of former party lines. 

According to the opposite view, generally received 
among the opposed party, or rather by one political 
school, and more particularly by " the North," the oper- 
ation of the Constitution as to each State is constantly 
independent of the consent of the State ; and it is as a 
consequence of this proposition that nullification and the 
right or capacity of a State to secede, " the right of peace- 
able secession," has been generally denied and resisted 
by those who supported the government of the United 
States against the attempt to establish a Southern Con- 
federacy. 2 

But in none of the judicial opinions above cited is this 

1 The right heing a political right, there is neither morality nor immo- 
rality in its exercise, if it exists. A citizen might have opposed the purpose 
of his State to secede, and yet support it from a sense of duty, 'when once 
resolved on by the State. As in the instance of Mr. A. H. Stephens, whose 
course as an official of the Confederacy, after having opposed, in conven- 
tion, the secession of his State, has often been stigmatized at the North as 
violation of acknowledged duty. (As in Eeport of the Committee on Re- 
construction, " a man who against his own declared convictions," &c.) In 
fact, his previous opposition should be held a guaranty of his belief in the 
political capacity of the State. 

2 It is undeniable that, in the minds of many persons who supported the 
government against attempted secession, the political duty, founded on this 
view, was entirely subordinate to motives of resisting the continuance of 
negro slavery (see, among others, the pamphlets issued by the Loyal Publi- 
cation Society, New York), and that many others regarded their own State, 
represented by the General Government, as the party claiming their political 
obligation in the war. 



THEORY OF OUR NATIONAL EXISTENCE. 89 

The Doctrine of Secession and its Opposite. 

right or capacity, in a State, recognized ; and we may- 
assume that no theory of the Constitution which neces- 
sarily involves it has been accepted by any member of 
the court since 1861, and certainly not by a majority. 1 

On the contrary, the existence of such a right or capaci- 
ty is, in many instances, expressly denied by various mem- 
bers of the court ; some of whom, by apparent reversal of 
the ancient maxims, — Cedant arma togce; — Inter arma 
silent leges, — in their statements of this, profess to accept 
the demonstration of military success as similar, in its re- 
lation to judicial opinion, to forensic argumentation. 2 

1 Probably even Mr. Justice Grier did not consider it recognized by him- 
self in what he said in the Prize Cases and in Texas v. White ; though it 
may be difficult to see how such a conclusion from his language can be logi- 
cally avoided. 

2 See the language of Grier, J., in Texas v. White, ante, p. 17, and in the 
Prize Cases, ante, p. 17. In the Legal Tender Cases, 12 Wall. 553, Bradley, 
J., said : " The doctrines so long contended for, that the Federal Union was 
a mere compact of States, and that the States, if they chose, might annul or 
disregard the acts of the National legislature, or might secede from the 
Union at their pleasure, and that the General Government had no power to 
coerce them into submission to the Constitution, should be regarded as 
definitely and for ever overthrown. This has been finally effected by the 
National power, as it had often been before, by overwhelming arguments." 

This view of the demonstration, in which artillery and logic are on the 
same plane, is probably in harmony with prevailing popular sentiment. It 
is almost needless to refer to publications (historical or political) since the 
war in which similar ideas have been expressed ; e. g., Frothingham's Rise 
of the Republic of the United States, pp. 3, 4, 608; G. T. Curtis's Discourse 
on the Nature of the American Union, &c, p. 8; — " But this was the great 
point of the debate that came, after all other modes of debate had been ex- 
hausted, to be referred to the arbitrament of battle." If the issue of the 
war had been otherwise, would the courts have held, against the old " over- 
whelming argument " that the doctrine of a State's right of peaceable seces- 
sion had been established, for the States remaining in the Union"? If the 
issue of battle is to be regarded like a judicial precedent for similar cases, 
may the political motives be taken in consideration, in determining what 
may be a similar case 1 Will the precedent hold in an instance where the 
conservation of domestic slavery is not involved ? This suggestion is rele- 
vant, in view of the countless instances in which the war has been regarded 
as one for or against certain doctrines of natural right, and not, intrinsically, 
for the maintenance of some established political authority. 



90 A DISCOVERY IN DOCTRINE. 

States obliged to exist as States. 

But whether " effected " by a certain amount of blood- 
shed, or " by overwhelming argument," the doctrine con- 
tended for is, so far, still the same it had been from its 
earliest period. 

In these recent opinions of the court, more has come to 
light. 

The States are not only bound to regulate themselves 
by its provisions, but the Constitution compels them .to be 
what they are, — to exist, — to be States. 

The doctrine thus announced by the court is really one 
which no political party, or school, or section of the coun- 
try, had ever before asserted. 1 The discovery of this fac- 
ulty in a written instrument, so many years after its 
adoption, should, if real, be regarded as marking an era in 
the development of constitutional politics. The merit of 
such discovery, however, should not perhaps be engrossed 
by the judiciary. 

The question, at the close of the war, was, — "Where is 
the sovereign power vested which was vindicated by the 
military success of the Constitutional government ? and 
now each citizen is obliged to ask himself, — 

Must I, if I reject the doctrine of State sovereignty 
with the right of peaceable secession, accept propositions 
like these, about — States holding sovereignty as States of 
the union under law derived from that sovereignty ; — 
States composing a union which compels them to compose 
it ; — States, separately, owing allegiance to themselves as 

1 It may, however, be taken up hereafter by some, for whose political 
advantage its discoverers would not have expected it to apply. See the 
Resolutions reported by joint committees of the Senate and House of the 
Virginia legislature, Richmond, Jan. 18, 1879, in regard to the action of 
Judge Rives, of the Western District of Virginia, especially the fourth, " That 
the preservation of the States, and the maintenance of their governments are 
as much within the design and care of the Constitution, as the preservation of 
the Union and the maintenance of the Federal government, and separate 
and independent autonomy of the States is necessary to the Union under the 
Constitution." Newspaper reports of the date. 



THEORY OF OUR NATIONAL EXISTENCE. 91 

A Chaos of Doctrine. 

a union ; — a union distinct from the States which com- 
pose that union ; — States in union against their wills ; 
— States, under a general government which came into 
being and which continues to be by their action, con- 
stituting a union in respect to which they are, singly, 
like counties or townships to a State ; — war against 
the Union by States which are themselves members of 
that Union ; — acts proved void by a war waged be- 
cause they were not valid ; — a government suppressing a 
rebellion, by arms, to find out whether there was any re- 
bellion against it at all ; — governments supported by the 
people of a State, which are not the State governments, 
though the State is still a State ; — States usurping their 
own governments ; — State governments usurping by the 
will of the people governed ; — States suffering, by the 
will of their people, from a non-republican government, 
and entitled to have a government forced on their people, 
as republican government guaranteed to the State ; — 
States and people rebels, because under usurped govern- 
ments ; — States keeping their political capacities, without 
power to use them, while their governments and all their 
citizens are public enemies of the United States, including 
such States ; — States having belligerent capacity, by 
their political nature, while their citizens, by fighting un- 
der their banners, commit treason against the other bel- 
ligerent ; — conquest, or political subjugation, and judicial 
punishment for treason being predicable on the same 
facts ; — a government deriving power from the law of in- 
ternational war to make a new law of war ; — raw agri- 
cultural products becoming munitions of war by being 
commercial staples in time of peace ; — powers belonging 
to commanders in the field, by usage of war, exercised at a 
belligerent's capital by a legislature under a limited consti- 
tution ; — legislative power by a belligerent state over its 
subjects as alien enemies; — citizens whose propert}', taken 



92 UNSEASONABLE PROPOSITIONS. 

Contradictions in place of Conclusions. 

from them as alien enemies, is returned to them on proof 
that they were not traitors ; — citizens, in the character of 
alien enemies, receiving punishment due to them as trai- 
tors or rebels ; — citizens who, in law, are alien enemies , 
— citizens who suffer punishment for treason when no court 
has passed on the question of treason ; — constitutional pro- 
visions for securing faithful administration of government 
applied as amnesty, for leaders, against loss of life, liberty, 
and property, under statutes still enforceable against the 
commoner rebels, &c, which have been presented, as the 
only alternative, by Executive, Legislature, Judiciary, and 
popular acclamation ? 

When contradictions in terms are stated as conclusions 
from serious argument, any further effort at demonstration 
is out of place. The sort of reply then becomes allowable 
to which Mr. Lincoln was somewhat prone in legal and 
political controversy ; and which, if it have no name in 
systems of logic, might well have one in wwsystematic 
rhetoric as argumentum de ludicro, or de ludibrio. 

A good little boy said to another boy, — " Your father 
and my father are brothers ; but you and I are not cous- 
ins." 

How was this ? 

Well, that good little boy lied. 

Can Presidents, Congress, the Supreme Court, or the 
" sovereign people," separately, or all together, make of a 
contradiction in terms any thing but a contradiction in 
terms ? 



THEORY OF OUR NATIONAL EXISTENCE. 93 

The Constitution as Law and as Fact. 



CHAPTER III. 

The Possession of Sovereign Power not determinable bt the Con- 
stitution as Law. — In what Sense determinable by History. 
— Different historical Statements as to the Location of that 
Sovereignty by which the Constitution was established. — The 
historical Question as affected by the War. 

The sphere of American politics is so remote from that 
of the old world that it escapes that constant and inter- 
ested observation which is a mutual necessity for the 
various states of Europe, and which originates there, and, 
more particularly, in England, such a wealth of con- 
temporary history and political criticism. Americans 
are, for this reason, inclined to feel more flattered 
than is perhaps consistent with self-respect when their 
institutions are made a study by a European writer ; but 
also disposed, perhaps, to be a little inclined to over-sensi- 
tiveness and to resent any thing like disapprobation. We 
cannot, however, deny that it is well for us, as a nation as 
well as men, to see ourselves as others see us. We ought 
to welcome that more interested observation and criticism 
which now appears as incidental to our national growth. 

In the first volume of his work entitled " The Constitu- 
tional and Political History of the United States," 1 by Dr. 
H. Von Hoist, of Strasburg, Germany, the author explains 
what he there calls " the inspiration theory " of the origin of 
the Constitution, and the heading of his second chapter is 
" The worship of the Constitution and its real character." 

On page 65, the author says, — 

1 The title of the first volume in the original is " Verfassung und Demo- 
kratie der Vereinigten Staaten von Amerika. I Theil : Staatensouveranetat 
und Sklaverei." 



94 SOVEREIGNTY AND CONSTITUTION. 

Von Hoist, on the Worship of the Constitution. 

" It is possible for us to trace the earliest beginnings of the wor- 
ship of the Constitution. At first, it was looked upon as the best 
possible constitution for the United States. By degrees it came 
to be universally regarded as a masterpiece applicable to every 
country." 

He remarks further on, — 

" This is not the place to go into a thorough investigation of the 
causes which led all classes of the people to a veneration for the 
Constitution, that bore at once the character of an esteem which did 
much good, and of a most ruinous idolatry, in which the idol wor- 
shipped was themselves." lb. p. 68. 

" The tendency to the creation of political dogmas kept pace 
with the development of democracy. At the head of all these 
dogmas, — those of natural rights and the social compact in part 
excepted, — stood the supremacy of the Constitution." lb. p. 72. 

" The political philosophy of the masses was comprised in these 
vague maxims. They clung to them with all the self-complacent 
obstinacy of the lowest and most numerous body of the working 
classes. They were nowhere more sensitive than here. Whoever 
desired their favor dared not to touch this idol of theirs, and could 
scarcely ignore it unpunished. The fetish had been raised up for 
the worship of the masses by their leaders ; and the masses, in 
turn, compelled their leaders to fall down and adore it. Under no 
form of government is it so dangerous to erect a political idol, as 
in a democratic republic ; for, once erected, it is the political sin 
against the Holy Spirit to lay hands upon it. 

" The history of the United States affords the strongest and most 
varied proof of these assertions. Not only the quarrels of 1787 
and 1788, but also the circumstances under which the Constitution 
originated, would have inclined one to believe any thing rather than 
that the Constitution would be chosen as the chief idol of the 
people." lb. p. 75. 

These expressions, with much more to the same effect, 
are all measurably true with regard to the popular rever- 
ence for the Constitution, as a system of general govern- 
ment. The details of the written Constitution have, how- 
ever, always been pretty freely criticised. Considering the 



THEORY OF OUR NATIONAL EXISTENCE. 95 

The Worship of the Constitution. 

way in which its clauses have been pulled about, this way 
and that, by political partisans and by lawyers contending 
over private interests, it would be strange if it had not 
been blamed as well as praised. 

But, aside from all such over-estimate of the provisions 
of the Constitution, it may be said that the German pub- 
licist has missed the very point of view which vindicates 
his designation of the Constitution as an American fetish. 

The feeling towards the Constitution which it is most 
material for ourselves, as Americans, to understand, is not, 
as he has presented it, like the complacency of the artist 
for his own work in statuary or painting. To be sure, Dr. 
Von Hoist had not, when he wrote his first volume, the 
light which has since been afforded by some of those utter- 
ances from high places which have been cited in the pre- 
ceding chapters. We can now see that the feeling is akin 
to that in the Guinea negro's ascription to the toy he has 
himself made, from sticks, rags, and feathers, of the divinity 
of uncreated essence, and of power in respect to which he, 
who patched the pieces together, is a helpless slave. The 
Constitution, having been made, became the author of 
being and law of life to him who made it. The fact that 
there must, by the nature of things, by the conditions of 
all political existence, always be a continuing somebody, 
or some continuing somebodies, — some visible, tangible, 
breathing, thinking, willing, acting person or persons, — 
to make it law for anybody, is sedulously veiled from the 
conscience of each American. He must believe that the 
Constitution came, — from heaven or from hell, it matters 
not ; but came, — and that we all are what we are by it, 
and without it would be nowhere. 1 

What is this but a fetish ? 

1 The reader might recall expressions like this, " We have aright to claim 
and we do claim that the Constitution has done its work, it has made a na- 
tion." North American Review, October, 1876, vol. 123, p. 361. 

"It [the Constitution] creates a state formed by a league," &c. Wool- 



96 SOVEREIGNTY AND CONSTITUTION. 

The Relation between Sovereignty and Law. 

That the existence of this feeling should be unnoticed 
by ourselves is largely due to the prevalence of notions as 
to the relation between sovereignty and law in which even 
Dr. Von Hoist might be thought to participate. After re- 
ferring to the Compromise Measures of 1833, as a victory 
for Calhoun and the Southern State-rights partisans, he con- 
cludes his first volume of the English translation (p. 505) 
with this comment, — 

" It was a terrible victory ; the vanquished have been terribly 
scourged for the defeat suffered through their sin, and the victors 
have been shattered to pieces by the result of the accursed victory. 
But conquered and conquerors brought down punishment upon 
themselves, because they did not understand one thing, or, if they 
understood it, would not live up to it, — ' Sovereignty can only be a 
unit, — and it must remain a unit, — the sovereignty of law.' " 

To this oracular sounding utterance, the reference, in 
foot-note, is " Bismark, May 14, 1872. Held ; Die Verfas- 
sung des Deutschen Reiches, p. 19." 

It might be suspected that the learned German himself 
is not beyond the charm of " glittering generalities " like 
those statements of doctrine in the Declaration of Indepen- 
dence which Mr. Rufus Choate, in his letter to the Maine 

sey, Pol. Science, ii. p. 2-49. " As if there were not something higher 
and greater than the separate States created by the Constitution." lb. p. 
251. 

There may be an idiosyncrasy in Americans to look about for the ulti- 
mate source of power in some document. Only by this could one explain 
Mr. B. T. Johnson's spreading out the Constitution, &e., of the Confederate 
States in an appendix to his volume of Chase's Decisions, " in order," as he 
says in his preface, " that it may be seen what force," &c. 

That is, — seen how the cart would draw the horse. 

But Story's argument, Comm. Book III., ch. 3, is no better ; being that 
when the document is named " constitution " there is no need of looking for 
authority, §§ 338-346. Mr. Webster began his argument, Feb. 16, 1833, 
on Mr. Calhoun's resolutions, with this idea, — " He cannot open the book 
and look upon our written frame of government without seeing that it is 
called a constitution. This may well be appalling to him." Webster's Works.. 
iii. 452. 



THEORY OF OUR NATIONAL EXISTENCE. 97 

The Phrase — Sovereignty of Law. 

Whigs, April 9, 1856, designated by this epithet, 1 in the 
propriety of which Von Hoist himself agrees. 

We cannot pretend to know what a Chancellor-Prince- 
Professor, wielding the army of a new empire, understands 
by sovereignty of law. On the lips of a private jurist, it is 
nonsense ; but also actively pernicious nonsense. Perhaps 
Dr. Von Hoist would ascribe to the Constitution of the 
German Empire that very same uncreated essence and 
supernatural force, for Germans, which Americans find 
for themselves in their Constitution. If so, the great 
American fetish may have a rival. 

The phrase — sovereignty of law — accepted with ap- 
proval, apparently, 2 by Von Hoist, is one which, with others 
employed in a certain school of politics, 3 has helped to 
generate and foster the idea which is developed in these 
opinions of the Court, — that constitutions of government 
can, as law, produce, sustain, and regulate sovereigns. 4 
' Sovereignty cannot be an attribute of law ; because, by*v 
the nature of things, law must proceed from sovereignty. ' 



1 Life of Rufus Choate, 2d ed. p. 306. " The glittering and sounding gener- 
alities of natural right which make up the Declaration of Independence." 
Von Hoist, vol. i. p. 31, note, ascribes the first use of this designation to 
" Calhoun, with an acuteness very wounding to Americans." 

2 That is, assuming, as his English-speaking readers must, that the author- 
ized translation conveys the idea expressed by the original in the sentence 
quoted as of Bismark. Die Souveranetat kann nur eine einheitliche sein, 
und sie muss eine einheitliche bleiben, die Souveranetat der Gesetzgebung. 
But if the last word, Gesetzgebung should be translated Jaw-giving, the 
sovereignty of law-giving, of legislative faculty, the author's meaning may be 
something quite different ; as, that sovereignty from which all law derives its 
authority, the very reverse of the idea which seems intended by the phrase 
in the English version of Von Hoist's work. If this is the case, it illustrates 
how vaguely words are employed in the discussion of these subjects, in the 
English language. 

3 Compare Professor Draper's " Civil War in America," vol. iii. ch. 95. 

4 Story, Comm., § 340, in his argument on constitutions, bases it on this 
falsity, citing from Federalist, No. 33 (Hamilton), "A law, by the very mean- 
ing of the term, includes supremacy," which is a contradiction in terms as ex 
eluding the supremacy of some existing sovereign to make it law. 



98 SOVEREIGNTY AND CONSTITUTION. 

The Question of Sovereignty — a Question of Fact. 

By the pre-existence of a sovereignty, law becomes possi- 
ble ; or, law exists in the exercise of sovereignty. The 
question is, in its nature, not a question of laio at all : 
it is one of fact. It is such in every country, — neither 
of law, nor of doctrine, nor of natural right. It is the 
question of fact to be settled before there can be any 
courts of law to sit in judgment about treason, or about 
any other wickedness. 

And the fact is one which each individual, whether 
called subject or citizen, is always supposed to know at 
his own peril ; when the imminent question is put to him 
by each of two opposed armies : " Under which king, 
Bezonian? Speak or die ! " or when he must ask himself 
in plain prose : Which of two claimants of power beyond 
laiv will be the one who, if I side with the other, will, or 
can, by his courts and sheriffs, hang me, confiscate my 
estate, and brand my memory with the name of traitor? 

To give the answer is, — to give the Constitution ; that 
is, to recognize a sovereign. But for the possession of 
sovereignty there is no law. It is therefore a question of 
a constitution in a different sense from that of any rule, 
written or unwritten, having the force of positive law. 

It is a question of existing fact. History proves possession, 
only as past possession may be assumed to continue. An- 
tecedents prove nothing, except as they may continue. 
The fact, so far as it is the continuing fact, is a fact in 
which law is included. 1 

1 The fact in this inquiry is that certain living persons have at some time 
past held political power. This has no connection with another class of 
facts, — conditions of topography, climate, soil, &c, which may be thought 
by political economists to indicate how wide an extent of territory might 
best be included under a single dominion. What has been called the " scien- 
tific basis on which our nationality has rested, and must rest," is excluded 
from the question here considered. Portions of Mr. Lincoln's Inaugural, 
and second Annual Messages (Macpherson, Pol. H. 107, 220) are occupied 
with this sort of reasoning, which was also employed in many publications . 
intended to help the national cause abroad, at the outbreak of the rebellion. 
Nor has the fact here inquired for any dependence on moral considerations. 



THEORY OF OUR NATIONAL EXISTENCE. 99 

Doctrine distinguished from History. 

From the nature of the question, fact and law being 
here coalescent, unified, or identical, it is difficult to dis- 
tinguish doctrine from history. The writers on the subject 
constantly state in narrative form the political effects 
which they personally ascribe to public measures, .as to the 
mere transaction of which there never has been the slight- 
est dispute. 

The two opposing doctrines have, as doctrine, been 
already stated. 1 I here attempt to present the various 
statements of the historical facts, which had more or less 
acceptance, before the outbreak of the rebellion, and up 
to the close of the war, and in the Reconstruction era, as 
basis for one or the other doctrine. 

For convenience of reference, the paragraphs in which 
different historical views are stated are designated by 
the Roman numerals. 

I. The written Constitution of the United States had, 
very generally, and independently of the antagonism of two 
political schools or parties, or of "North" and "South," 
because they had not differed, materially, on this point, 
been received as the statement of a transaction of some 
sort (as to the true nature and proper name of which there 
was much dispute), before which the several States, or the 
several politically organized peoples of each original State, 
possessed, in severalty, all the powers of a political sover- 
eignty ; each holding sovereignty as a unit. 2 

The maintenance of slavery, or of polygamy, or of any social arrangement, 
may be good or bad, without being any argument for the lawfulness or un- 
lawfulness of political action. 

All appeals for sympathy, against the rebellion, founded on these con- 
siderations, were suggestions of weakness on the real question at issue, and 
injured the government abroad. 

1 Ante, p. 87, 88. 

2 ..This was often declared by the early jurists. See Federalist, No. 39, 
and Madison's later writings ; 3 Dallas, 199 ; 4 Cranch, 212 ; 19 Howard, 
602 ; 7 Cush. 275, 317 ; 9 Wheaton, 187 ; 19 Howard, 441. It was equally 
assumed by Mr. Calhoun and Mr. Webster. Brownson's American Repub- 
lic, 195, 240. 



100 SOVEREIGNTY AND CONSTITUTION. 

Variations of the Historical Statement. 

II. This historical basis being accepted, the doctrine 
which recognized the States as the parties by whose ac- 
tion the Constitution was " adopted," and which, as a con- 
sequence of this, regarded the States as still possessing 
full political sovereignty, while the Constitution was only 
the revocable power of attorney to the general govern- 
ment organized by it, is simple. It is no wonder that, 
from this characteristic alone, it should have been widely 
accepted, from the earliest period, for true history and 
good doctrine. 1 But the same historical basis, in the 
complete sovereignty of the several original States, was 
accepted also by a very large majority, to say the least, of 
those who denied, as matter of doctrine, the rights of 
nullification and peaceable secession. 

In the exposition of the genesis of the Constitution, 
leading from this historical basis to this doctrinal denial, 
there may have been much diversity among those who 
agreed in the final opinion. But whether the diversity 
was one in the matter of history, or one in the matter of 
doctrine, is as much in dispute as any thing in the whole 
controversy. 

III. It is probable that by a very great majority of in- 
telligent citizens, who made the denial of the right of 
secession, while accepting the historical basis above stated, 
the written Constitution was regarded as resulting from 
the action, whether called contract or league or cession 
or grant, of a number of sovereign States, but yet dif- 
fering from an international treaty in this, that, by it, the 
States were supposed to be bound, precisely as private 
persons living under law are bound by their agreements ; 
the result being the creation of a government under power 
of attorney, as by the other theory, but that power being 

1 It is plain that it was in this light that foreign governments, including 
that of Great Britain, chose to regard it at the outbreak of the rebellion. 
See ante, p. 56. 



THEORY OF OUR NATIONAL EXISTENCE. 101 

Variations of the Historical Statement. 

an irrevocable one. The peculiar characteristic of this 
view is, that the agreement was supposed to act on the 
contracting parties, whether called the States, or the people 
of the States, by some intrinsic force ; there being no recog- 
nition of a sovereign conceived of as existing indepen- 
dently of the States, as feudal superior or otherwise, to 
whom its authority, as law for the States severally, might 
be ascribed. In this view, the agreement, having been 
written oat, had been submitted to the parties, — the 
States ; been voluntarily signed by them, and stood on 
record ; and there was no more to be said. It was an 
agreement, and the States were bound by it. It then 
operated, to bind and to loose, independently of the States 
or of any person or persons in being, and the govern- 
ment organized in accordance with its provisions was 
of necessity its instrument, and therefore had the right 
and duty to enforce it against any particular State or 
States. 1 

A position which might fairly be thus stated had un- 
doubtedly been long held by many persons eminent for 
public services and legal attainment. But there were 
probably more, and equally respectable, among those who, 
while they repudiated State secession, accepted the oiigi- 

1 See, for instance, Madison in a letter to Rives, March 12, 1833. Madi- 
son's Writings, IV. p. 289. In an Address delivered in Boston, July 4, 
1862, by Mr. Geo. T. Curtis, it is said the people of each State executed 
" a cession of certain sovereign powers, described in the Constitution, to the 
government which that Constitution provided to receive and exercise 
them. These powers being once absolutely granted by public instruments 
duly executed in behalf of the people of each State, were thenceforth in- 
capable of being resumed. For I hold that there is nothing in the nature of 
political powers which renders them, when absolutely ceded, any more 
capable of being resumed at the pleasure of the grantors than a right of 
property is when once conveyed by an absolute deed. In both cases those 
who receive the grant hold under a contract, and if that contract, as is the 
case with the Constitution, provides for a common arbiter to determine its 
meaning and operation, there is no resulting right in the parties, from the 
instrument itself, to determine any question that arises under it." 



102 SOVEREIGNTY AND CONSTITUTION. 

Variations of the Historical Statement. 

nal several sovereignty of each State who would have 
preferred to say that — 

IV. The States, originally being completely and in- 
dividually sovereign, did each, in the adoption of the 
Constitution, make a voluntary cession, or grant, or sur- 
render of a certain portion of the powers or attributes of 
sovereignty, which thereupon passed, as by an interna- 
tional political transfer, but without civic revolution, not 
under law but as fact, to a newly born political person to 
whom the name the United States or, less formally, the 

Union, was applicable ; which portion was, thereupon, 
held, by such United States, or Union, in the same man- 
ner or sense as the sum of sovereign powers is held by 
any independent nation ; not by law, but as fact : while 
the remainder of sovereign powers, not ceded to such 

United States or Union, continued to be held, by the sev- 
eral States, in the same manner and sense as the sum of 
sovereign powers is held by any independent nation ; not 
by law, but as fact. 1 

V. There was a modification of this view which some 
may regard as consisting only in a verbal distinction, but 
which others may consider as involving a most essential 
difference by the use of one word. By this view, the grant 
of power was of the same nature as that last described ; 
but the grantee and resulting holder was the government 
instituted in the act of grant, — the persons exercising 
the executive, legislative, and judicial functions, as pro- 



i Taney, Ch. J., 19 Howard, 441 ; Gibbons v. Ogden, 9 Wheaton, 187. 
This is apparently the view which DeTocqueville received. 

Woolsey's Pol. Science, I. p. 141, speaks of the United States as some- 
thing existing or being sovereign without reference to the " States which 
compose the Union." " Thus we often have to say, ' the general govern- 
ment,' as if it were the United States, thus exalting the organ, the adminis- 
tration, or the law-making and the executive powers, above their true place, 
and, on the other hand, giving the impression that there is no State besides 
those States which compose the Union." 



THEORY OF OUR NATIONAL EXISTENCE. 103 

Variations of the Historical Statement. 

vided in the Constitution ; in distinction from the United 
States or the Union, as such grantee and resulting holder. 1 

VI. There were, probably, others who, while rejecting 
the historical basis of the original complete sovereignty of 
each several State, yet conceived of the same political dis- 
tribution of sovereign power, less clearly defined, as having 
occurred at the earliest moment of the independence of 
the States which, having been dependent colonies, had 
been united in attaining it. 2 

VII. There had been many also, who, while they pro- 
fessed to accept the same historical basis of the several 
sovereignty of the original States, yet conceived of some- 
thing in the nature of a peaceful revolution occurring in 
the adoption of the Constitution in the conventions of the 
several States, but in the name only of the several States, 
wherein a " people of the United States " came into being 
as a political unit, by assuming those powers of sov- 
ereignty which were then delegated by them to a national 
government under the Constitution ; while the residue of 
powers, not so assumed and so delegated, remained as 
sovereign powers with the several States. 

1 President Jackson, December, 1832. " The Constitution of the United 
States, then, forms a government, and not a league, and whether formed by 
compact between the States, or in any other manner, its character is the 
same." Compare also the language of Mr. Curtis, ante, p. 101, note. 

2 The language of Chief Justice Chase, delivering the opinion of the court, 
in County of Lane v. State of Oregon, 7 Wall. 76, and to which he himself 
referred in Texas v. White, ante, p. 12, may perhaps be regarded as illus- 
trating this view. " The people of the United States constitute one nation, 
under one government, and this government, within the scope of the powers 
with which it is invested, is supreme. On the other hand, the people of each 
State compose a State having its own government, and endowed with all 
the functions essential to separate and independent existence. The States 
disunited might continue to exist. Without the States in Union, there is no 
such political body as the United States. Both the States and the United 
States existed before the Constitution. The people, through that instru- 
ment," &c. (quoting Madison and the Federalist). ..." The Federal and 
State governments are in fact but different agents and trustees of the peo- 
ple ; constituted with powers, and designated for different purposes." 



104 SOVEBEIGNTY AND CONSTITUTION. 

Two General Views distinguished. 

VIII. There were besides some, probably, who rejecting 
altogether, from their historical basis, the full sovereignty 
of the original States, had found a " people of the United 
States " such as is discerned in the view last stated, com- 
ing into being at the revolution, and, from that time for- 
ward, possessing all those powers which were afterwards 
entrusted to a national government by the written Con- 
stitution, as law. 

It can hardly be expected that the discriminations I have 
attempted to make in these several statements should be uni- 
versally, or even generally accepted, as being satisfactory 
in point of historical accuracy. It maj r , however, appear 
that so far as such, or very similar, varieties of opinion 
had substantial existence, they were founded on two lead- 
ing conceptions of the facts, each supposed to be incon- 
sistent with the claim of right of peaceable secession : — 

First, the idea of an irrevocable grant or cession by the 
States of certain of their sovereign powers. 

Second, the idea of some more or less revolutionary pro- 
ceeding, whereby " the people," or " the nation," as an ag- 
gregate of individuals, re-assumed those sovereign powers 
which were by the Constitution invested in or intrusted to 
the government organized by it, while the residue of sov- 
ereign powers continued in the possession of the several 
States, or the people of those States. 

It may further appear that these two ideas, though 
essentially antagonistic, were more or less combined in 
statement, especially by publicists of the Madison and 
Webster school. 1 

1 Or employed separately by the same person at different times. Com- 
pare Mr. Madison's Letter to Mr. Eives, March 12, 1833, Madison's Writ- 
ings, iv. 289, founded on the first statement ; and his letter to Mr. Web- 
ster, March 15, 1833, ib. 293, founded on the second. 

As illustrating a popular statement of this sort, — Worcester's Diet. 4to, 
voc. ; "Sovereignty , — the state or power of a sovereign ; supremacy ; supreme 
power or rule. In the United States, the absolute sovereignty of the nation 



THEORY OF OUR NATIONAL EXISTENCE. 105 

New Elements in the Question. 

It would be obviously impossible to present any- 
adequate citation of the earlier opinions supporting 
these different statements, classified with regard to their 
separate claims to respect, or as authorities in any de- 
gree. 

Indeed, so far as the location of sovereignty is still a 
question for ordinary historical research, it seems that, as 
opinions have differed for the last hundred years, there 
can be no reason why the same, difference should not 
exist for another century, or longer, being a matter on 
which anybody and everybody may have their several 
opinion. 

But, as far as courts holding the judicial power of the 
general government are concerned, the older method — 
of looking for the location of sovereign power by the light 
of the earlier opinions or authorities — has been super- 
seded by new elements in the present circumstances of 
judicial determination. 

For, if the attempted secession of a State, or of a num- 
ber of States, could rightfully, lawfully, or consistently, 
be resisted by the military strength of the constitutional 
government only on an assertion of the location of sov- 
ereign power resting on a particular historical basis, — it 
follows that the juridical exposition of the rights and obli- 
gations of private persons, arising out of the event, must 
also be founded, by the courts identified with the govern- 
ment which exercised that military power, upon the same 
historical basis. 

However essential, or otherwise, may be the differences 
among those several statements of the origin of the Constitu- 
tion which have here been presented as all equally supposed 
to be inconsistent with the right of peaceable secession, it 

is in the people of the nation, and the residuary sovereignty of each State 
not granted to any of its public functionaries, is in the people of the State. 
Story, Bouvier." 



106 SOVEREIGNTY AND CONSTITUTION. 

Sovereignty is Indivisible. 

is to be noticed that they all involve the divisibility of 
sovereign powers. 

This divisibility of sovereignty, or of the powers of which 
it consists, has been held, more or less distinctly, by many 
American publicists ; 1 and appears to have been accepted 
by DeToequeville, as illustrated in the case of the United 
States. 2 

But whatever I may think of the phrase sovereignty of 
laiv, I should still be ready to accept, as true, the first part 
of the proposition in which it is employed in the sen- 
tence cited by Von Hoist, — sovereignty can only be a unit, 
and must continue a unit; that is, as meaning — that those 
powers in the sum of which sovereignty consists, and 
which, by their nature as sovereign powers, are held, 
not under law, but as fact, cannot be so held (i. e., not 
». under law, but as fact), in separate portions, by distinct 
\and mutually independent personalities. 3 

And further I recognize the truth of that which Yon 
Hoist has stated, somewhat obscurely, in the passage 
already cited, that the ignorance, or want of consciousness, 
on the part of the American people, on this single point 

1 Mr. G. T. Curtis, in " A Discourse on the Nature of the American Union," 
&c, p. 9, note, speaks of it as " an American discovery." Judge Cooley's 
statement, in Constitutional Limitations, p. 2, is, — " In American Constitu- 
tional law, however, there is a division of the powers af sovereignty between 
the National and State governments by subjects ; the former being possessed 
of supreme, absolute, and uncontrollable power over certain subjects 
throughout all the States and territories, while the States have the like 
complete power, within their respective territorial limits, over other sub- 
jects." Cites McLean, J., in License Cases, -5 Howard, 588 ; also Taney, 
Ch. J., in Ableman v. Booth, 21 Howard, 516. This question will be more 
fully considered hereafter, in Chap. VII. 

2 Democracy in America, Vol. i. p. 154, " The sovereignty of the United 
States is shared between the Union and the States." 

3 That sovereignty is indivisible. Lieber's Pol. Ethics, i. p. 252; Brown- 
son's American Republic, 192-196 ; Jameson's Constitutional Convention, 
p. 2. The indivisibility of sovereignty was an axiom with the Southern 
statesmen. See Calhoun's Works, i. pp. 122, 140; A. H. Stephens's History 
of the War between the States, ii. p. 23. 



THEOKY OF OUR NATIONAL EXISTENCE. 107 

Alternative for the Judiciary. 

was the cause of the civil war, 1 — the causa sine qua non ; 
and hold further, that, so far as the war, as fact, settled 
any thing, it was, — that sovereignty is indivisible. 

For this reason, I here assume that each and all of the 
historical statements above referred to are now all equally 
excluded from judicial consideration ; whatever may be 
the support found for them in previous decisions and 
opinions. 

For the same reason I here assume that the written 
constitution must now be taken to derive its force as 
law either from a number of political personalities, each 
severally possessing (not under law, but as fact) all 
sovereignty as a unit ; or from some one political per- 
sonality, or one aggregate of political personalities, pos- 
sessing (not under law, but as fact) all sovereignty as a 
unit. 

The States-rights doctrine, involving the right of peace- 
able secession, was asserted upon the first alternative, as 
being the historical fact. 2 

Unless, therefore, the States-rights doctrine can be re- 
futed on this basis, the courts, holding the judicial power 
of the United States government, are shut up to this alter- 
native, — either to recognize in the history of the past, 
continuing to the present moment, some one personality, 
or one aggregate of personalities, holding sovereignty as a 
unit ; or to accept secession, as a right, before 1861, and the 
whole action of the government, since that date, as usurpa- 
tion, now legal and constitutional only as by successful 
revolution. 

There may be many who will say that the personality 
holding sovereignty as a unit was recognized long ago, or 
that now, at any rate, the national judiciary must be un- 

1 See ante. p. 96. 

2 Baldwin's Constitutional Views, passim ; Calhoun's Works, i. 161 ; ii. 
262 ; iii. 149 ; A. H. Stephens's History, &e., Vol. ii. p. 33. 



108 SOVEREIGNTY AND CONSTITUTION. 

A Sovereign as found in the People. 

derstood as having accepted a view distinct from either of 
the two general conceptions of the facts hereinbefore 
given on page 104, involving divisibility of sovereignty ; 
or, more specifically, from any one of those several preced- 
ing statements which might be classed under one or the 
other of those general conceptions. 

IX. There may be instances in recent opinions, some 
of which have herein been cited, to say nothing of any 
before the war, in which the authority of the written Con- 
stitution, not merely as law for the organized national gov- 
ernment, and for the inhabitants of the country, individu- 
ally, in their relations with that government, but as law of 
existence and obedience for the States in their political capa- 
city, is ascribed to the nation, or to the people, as one homo- 
geneous political personality holding all sovereignty as a 
unit, in distinction from the organized political people of 
the several States. 

It will probably be held also that, so far as the existence 
of such a nation or people has been maintained by the 
Supreme Court, it has hitherto been recognized by its 
several members as of their own personal knowledge of 
the history of the last century, confirmed by the earlier 
opinions of the court 1 and the statements of a succession 
of jurists, as having continued from the adoption of the 
Constitution, or from that of the Articles of Confederation, 
or even from the time of the separation of the colonies 
from the British Empire. 

It may be fair to assume that, in the view of any 
American tribunal, the most extended and strongest juris- 
tical array of authority supporting this position, as his- 

1 The earliest statement which may be so construed is, probably, by 
Jay, Ch. J., in Chisholm v. Georgia, 2 Dallas, 470. " The people, in 
their collective capacity, established the present Constitution." Cooley, 
Constitutional Limitations, 5, note, citing the passage containing this, 
adds that this point is forcibly put and elaborated in Texas v. White, 7 
Wall. 724. On this see also Pomeroy, Const. Law, 3d ed. § 762. 



THEORY OF OUR NATIONAL EXISTENCE. 109 

Story's Array of Testimony. 

torical, has been that collected by Judge Story in his Com- 
mentaries. Book III. Ch. 3. 1 

But the value, as testimony, of any such earlier recog- 
nitions of the people, as a personality holding all sovereignty 
as a unit, may be learned quite as much from what the 
distinguished jurists and statesmen, there cited, did not 
show, as from their several, often inharmonious, affirma- 
tions. 2 

Even from the elaborate argument made by Judge 
Story, attributing the Constitution to the will of the people, 
as distinguished from the will of the States, it can only be 
conjectured whether he himself understood the words "we, 
the people," in the written Constitution, as meaning the 
inhabitants of the country, as one mass of population ; or 
the people, — as the aggregate of the several masses of 
population in each State, each regarded, without reference 
to internal political organization, as a severally willing 
and consenting constituent by the voice of the majority ; 
or the people, as the aggregate of the several bodies of 
voters in each State ; each constituting a severally will- 
ing and consenting corporate body, under their several 
organic laws. 3 

1 I here take for granted that those who would support this position 
would cite Story as chief authority ; judging only from the reference so 
generally made of late in political discussion. I here allow, for purpose of 
argument, that Story took this view. I do not undertake to say whether 
he did, or only that view which I have tried to describe in paragraph VII. or 
paragraph VIII. 

2 The same inference against their statements applies to the same 
authorities, so far as they recognized " the people " as holding only those 
powers of sovereignty which were to be exercised by the national govern- 
ment according to paragraph VII. or VIII. 

3 The argument from the use of the word " people " in the Constitution, 
illustrates the mistake [denied by Pomeroy, Const. L. § 18?] in looking at 
the question from the lawyer's point of view ; that is, starting with a docu- 
ment to be interpreted; as by Story (see Comm, § 365), and, as was illus- 
trated by Mr. Webster, replying to Hayne : — " Here is a law, then, which is 
declared to be supreme ; and here is a power established, which is to inter- 
pret that law. Now, Sir, how does the gentleman meet this ? Suppose the 



110 SOVEREIGNTY AND CONSTITUTION. 

The Failure in the Authorities. 

However numerous or individually positive may have 
been those advancing this doctrine of sovereignty in the 
nation or " the people," it is to be noticed that no one had 
ever pretended to .specify a time in the history of the 
country when political power was visibly exercised by any 
persons other than those personally delegated by the 
organized political people of the several States ; 1 that is, 
delegated in some election, by some certain known natural 
persons, who could be individually discriminated from the 
mass of the inhabitants, as having the elective franchise in 
and for their respective States, and having it only because 
it had been conferred on them by such State, or by the 
body of voters in their corporate capacity, and as by the 
right or power of that capacity. 

No one disputed that the governments which succeeded 
the colonial were established by the will of the electors or 
freemen of the colonies, and that no such exercise of the 

Constitution to be a compact, yet here are its terms ; and how does the 
gentleman get rid of them ? He cannot argue the seal off the bond, nor 
the words out of the instrument. Here they are, what answer does he 
give them 1 . . . I show him the grant. I turn him to the very words. I 
show him that the laws of Congress are made supreme," &c. Webster's 
Works, iii. 345. The question is not of interpretation of the word people, as 
a legal question. It is to identify those who used the pronoun we, as a 
political question. All the interpretations cited by Story are as nothing 
against the simple fact that the Constitution was accepted by the majority 
Tote of the legal voters in each State. Those interpretations appear to have 
originated in the apprehensions of those who wished to have the States 
plainly declared independent confederating parties. See Story's Comm. 
§ 358, and note of original authorities. Mr. Madison, who has been con- 
stantly cited of late as sustaining that interpretation, did not rest on this 
word at all. See Brownson's Am. Rep. p. 224. 

1 That is, by the electoral people in each State, represented in convention 
as the political people in such State. There is no foundation in any theory, 
or by any argument, nor in intelligent conception, for the assertion that, in 
such convention, it is not they who act, exercising their own volition, as 
such political people, but an entirely different personality, of which they, as 
individuals, are only a fractional part; that is, a mass of people within 
certain geographical limits, without regard to political organization, cor- 
porate existence, and personal franchise ; an idea recently taken up and 
enlarged by Judge Jameson and by Professor Pomeroy. 



THEORY OF OUR NATIONAL EXISTENCE. Ill 

The Failure in the Authorities. 

will of the mass of the inhabitants, even of a single 
colony, much less of all, as one nation, ever established 
those freemen or electors as the representatives of the 
mass. 

No one disputed that the Constitution of the United 
States became law only after the politically organized 
people of the States voted for it in their respective States, 
according to their own State laws determining the indi- 
vidual voters. 1 

No one had told of a time when the inhabitants, indis- 
criminately and without regard to these State laws, made 



1 1 Kent, 225 : — " The plan was submitted to a convention of delegates, 
chosen by the people at large in each State, for assent and ratification." 
" People at large ; " this is a false term of description for designating those 
who, in each State, then held the elective franchise and who alone voted. The 
people at large in each State, meaning the whole mass of inhabitants in each 
State, did not choose the delegates. " Such a measure was laying the founda- 
tions of the fabric of our national policy where alone they ought to be laid, — 
on the broad consent of the people." This is true only on the supposition that 
the voters in each State, deriving their franchise from the State as an 
existing political being, constituted " the people " who could give a " broad 
consent." 

" It is true that the consent of the people was given by the inhabitants 
voting in each State ; " this, again, is untruth. " The inhabitants," generally, 
did not vote ; only a small portion of the inhabitants ; " but in what conceiv- 
able way could the people of the whole country have voted 1 ' They 
assembled in the several States,' said Story, ' but where else could they 
assemble ? ' " Nobody is called upon to show where or how they could. It 
was for Story and Kent to show that they did. Those who make the asser- 
tion are bound to show how " the people of the whole country " could be 
doing any thing, because certain persons, who were not "the people of the 
whole country " (unless the voters in each State were "the people of the 
whole country "), were doing something. From our implicit faith in the hon- 
esty and patriotism of these jurists, we have been accustomed to read 
their statements of history without reflection, and it may be believed that 
they themselves, under truest patriotic feeling, really thought that this was 
reasoning, and not a recklessness of statement which would not be tolerated 
in ordinary matters and from ordinary men. The whole of this argumenta- 
tive presentment of the material facts, whether offered for argument or for 
history, rests on the assumption that a certain body of persons, who are 
called the people in one sense, are identical with an entirely different body of 
persons, also called the people, in an entirely different sense. 



112 SOVEKEIGNTY AND CONSTITUTION. 

The Proper Inference. 

known the Constitution of the United States as their 
expressed will, with the purpose to bind in union the 
States then existing or thereafter to exist. 

No one denied that, if the written Constitution was to 
be amended, the organized political people of the States, 
holding the franchise of voting under State law, would, by 
their legislatures or in convention, vote in each State and 
for each State, as the people of those States, and that 
the people of the whole country, as a mass of millions, 
would have no more to do about it, politically, than the 
inhabitants of Central Asia ; and could not have any thing 
to do about it, unless by a revolution. 

On this matter, regarded as a simple historical fact, there 
never has been, and is not now, the slightest difference of 
statement between the advocates and the opponents of 
the doctrine of secession. 1 

But, in the mere statement of these things, there is 
recognition of the fact that sovereignty, that is, the 
supreme function in making law, 2 had never been held by 
the people or by the nation, except as the politically organ- 
ized people of the several States are such people 3 or nation; 
and that when, as matter of undisputed fact, the words 
" We, the people," &c, were declared in the Constitution 
by the majority vote of each politically organized electoral 
people of the several States, they asserted that they, being 
so organized, were " the people " from whom the Consti- 
tution was to derive its authority, and did not thereby 
declare that some other persons, viz., the mass of the in- 
habitants, or the nation without regard to organization, 
were the persons then speaking and designating themselves 

1 See this illustrated even by Story in his strained interpretation of 
Madison's plain language. Comm. § 365. 

2 " Die Souveranetat der Gesetzgebung," ante, p. 97. 

3 Which is the sense in which Mr. Madison spoke of " the people." 



THEORY OF OUR NATIONAL EXISTENCE. 113 

The Failure of the Myth. 

as those to whom the authority of the Constitution should 
be ascribed. 1 

The people, or the nation, holding sovereignty, as dis- 
tinct from the States, or the political!} 7 organized people of \ 
the States, was, therefore, not even a myth ; unless there 
can be a myth without any mythical history. 

It can hardly be pretended by any one, that all who, be- 
fore 1861, denied the right of State secession, and all who, 
during the war, supported the general government in re- 
sisting the separation of the eleven Southern States from 
the Union, must have recognized such an investiture of 
sovereignty in the nation or the people, independently of 
any organization of the States, or of the political people 
of the several States. 

But there may be ground for saying that some such 
assertion of the location of sovereign power has been in- 
sisted on, towards the close of the war especially, and in 
and since the reconstruction era, 2 by a large proportion of 
those writers and speakers who, in or out of Congress, 
have sustained the several administrations of the general 
government. 

Yet those who, at any period of our history, have been 
most elaborate in their assertions of such an origin for the 
Constitution, have never agreed in distinguishing the per- 
sonality on whose will it is supposed to rest, except by such 

1 This assumption, about a matter of historical fact, is the corner-stone 
of the argument with the far greater part of writers who have supported the 
policy of Congress in the reconstruction period, and had been that of all the 
school of Story and Webster. (Story, Comm. § 363.) The assertion of 
the existence of such a people, without the slightest attempt to explain the 
facts of history, is the basis of Mr. Webster's argument in reply to Hayne, 
Webster's Works, iii. 321, 322, and forms the bulk of his speech on Mr. 
Calhoun's resolutions, Feb. 16, 1833, printed in same volume, 448, under the 
title The Constitution not a compact between sovereign States, which, as a propo- 
sition, may be perfectly true, and may be established without any perver- 
sion of the historical record. 

2 For illustrations, compare speeches in Congress collected in Wilson's 
History of Reconstruction. 



114 SOVEREIGNTY AND CONSTITUTION. 

The Hypothetical People. 

terms as the union, the United States, the nation, the people, as 
being all equally applicable and descriptive. It might be 
supposed that the matter was and is a question of transcen- 
dental philosophy, instead of one of fact, to be settled by 
ordinary evidence. For, so far as the discrimination of 
the people or the nation as a political entity has been at- 
tempted, it has been by setting up a metaphysical hypo- 
thesis generated out of the social-compact theory and the 
abstract propositions of the Declaration of Independence, 
which has gained a new hold on the imagination by a 
feeling of the necessity for finding some one personality, 
or one aggregate of personalities, holding sovereignty as 
a unit, to whom the authority of the Constitution as law 
should be ascribed. 1 

It is by reason of our general failure to discover in our 
history any such one political personality, or one aggregate 
of personalities, that the absurdity that all political power 
in this country exists by virtue of a certain paper docu- 
ment, either with or without a people, or a nation, or a 
union, or a United States, existing in the mind's eye, inde- 
pendently of the politically organized States, — the absurd- 
ity which had been cherished, nurtured, and developed in 
the school of Webster and Story, — has long been received 

1 1 assume, from the nature of all discussions on these subjects, that I 
need feel no hesitation in indicating Judge Jameson, Judge Cooley, and 
Professor Pomeroy, as authors who, as I understand their writings, have 
recently illustrated this statement. Compare Jameson's Const. Convention, 
ch. ii., particularly § 51 ; Cooley's Const. Limit, pp. 5, 6; Pomeroy's Const. 
Law, §§ 4-12, which the author gives as substantially taken from Falck's 
Juristische Encyclopadie, and ib. §§ 86-39. By citing the authority of Falck, 
who was writing, I suppose, without reference to any particular country, 
Mr, Pomeroy makes it more distinct that he accepts an hypothesis in the 
place which a fact alone is adequate to fill. If Falck postulates the pos- 
session of sovereignty by every congeries of thousands or millions called a 
nation, as a fact which is the fact at all times, and in all countries, — in Ger- 
many, Eussia, Burmah, America, or elsewhere, — it is a fact in which I do 
not take the slightest interest. If these writers understand by sovereignty 
something which is held in this way, then the thing whose possessors in this 
country I wish to ascertain must be something else. 



THEORY OF OUR NATIONAL EXISTENCE. 115 

A Popular Absurdity. 

as the only possible refuge l from that doctrine of State 
sovereignty which, while involving the right of peaceable 
secession, was at least simple, consistent, and intelligible. 
And it is from the continuance of the same general failure 
that the same absurdity has been put forth with new it- 
eration by Presidents, by Congresses, by judiciaries, and 
by " loyal " people, as justifying the action of the govern- 
ment in suppressing the Rebellion, and still reappears, from 
time to time, in cases before the Supreme Court, as giving 
the key to the questions of law which have arisen out of 
the same event. 

1 Mr. G. T. Curtis, Life of Webster, i. p. 359, " It has been said that Mr. 
Webster needed no preparation to answer the heresy of nullification. In 
one sense this is true. From his first entrance into public life, he had been 
familiar with the historical facts on which any true theory respecting the 
nature of the Constitution of the United States must be based. His opinions 
on the subject had been formed long before the crisis of 1830-33 had arisen ; 
and. if it is to be suggested that those opinions were such as were usually 
held by the best minds in New England, it is to be remembered that they 
constitute the sole ground on which the supremacy, claimed by the Consti- 
tution as the supreme law of the land, can be maintained." 



116 ESTERXATIOXAL COMPACTS. 

Contracts under Municipal Law. 



CHAPTER IV. 

The Weakness in Theories founded ox the several Possession of 
Sovereignty by the original States. — Historical Review of 
Xational and State Existence from the Colonial Era to the 
Adoption of the written Constitution. 

If the statement, commonly accepted, of the independent 
existence of the States, from the end of the colonial period 
to the beginning of that which is marked by the adoption 
of the Constitution 1 of 1787, is historically true, the doc- 
trine, as to the effect of that transaction, which is com- 
monly set up iu opposition to that of States-rights, has no 
reasonable foundation. 

In the argument to support that doctrine there is this 
fallacy ; that the arrangement, whether called contract, 
compact, league, grant, or cession, is placed before the 
mind under the conditions of a contract, compact, league, 
grant, or cession, under municipal law. 2 

When Doe and Roe make a contract, &c, each is bound 
because he may be compelled to fulfil its conditions. But 
this arises from the circumstance that Doe and Roe are 
not the only persons concerned with the contract, &c, to 
which they are the parties. There is a third, and very 
much interested, person — the civil power, or, in more plain 
and direct terms, some sovereign-power holder, to whom 
they are both subject, whether they choose it or not, who 
gives the contract its binding force, by having the power 
and the intention to compel the fulfilment of its conditions. 

i Ante, p. 99. I. 

2 Madison in his letter to Rives, Writings, iv. 290, — " It is asked whether 
a State, by resuming the sovereign form in which it entered the union, may 
not of right withdraw from it at will. As this is a simple question, whether 
a State more than an individual has a right to violate its engagements, it 
would seem that it might be safely left to answer itself." 



THEORY OF OUR NATIONAL EXISTENCE. 117 

Effect of International Contracts. 

Hence it has legal force, that is, it is enforceable at the will 
of either party against the other, without reference to their 
individual strength. There is no u wager of battle," no 
" appeal to the supreme arbitrament of war," &c, for Doe 
against Roe, or for Roe against Doe. That may be a very 
good thing in itself; but, as the case stands, they simply 
must not do it. But it is not efficacious, or valid, or opera- 
tive by moral force alone, without, that is to say, the inter- 
ested co-operation of that third person. 

But, when independent States or sovereigns make their 
contracts, &c, there is no such third person concerned. 
There is no third will and force to coerce either of the two 
contracting parties. There are only the two, and the force 
and will of the one and the force and will of the other are 
the only elements, if the result of the compact is to be 
determined by force and will. 

In the case of the Constitution of the United States, the 
Government of the United States is not such a third per- 
son, either as a whole or in any of its separate function- 
aries ; because, under the assumed condition of things, 1 it 
is itself only the result of the contract, compact, league, 
grant, or cession ; did not exist before it, and cannot exist 
independently of it. A nation, or the nation, or a people, 
or the people, or something distinct from the government 
and from the nation, and from the people, and called The 
United States, is not such a third person ; because, under 
the assumed condition of things, there was no political 
nation, or people, and no such United States, when the 
contract, &c, was made, and there has been none since ; 
except as such a thing exists by the contract, &c, as its 
subject-matter. 2 

1 The premises equally accepted by Calhoun and Webster in 1833. 
Brownson, Am. Rep. 195. 

2 It is this which is the trouble with Mr. Webster's argument. See 
Brownson, Am. Rep. 192-196. 



118 INTERNATIONAL COMPACTS. 

Contract of Sovereign States. 

In the case of Doe and Roe's contract, their several wills 
acted in its making only, and so were facts on which the 
laiv, that is, the measure of justice enforced by the will of 
their political superior, acted to sustain the relation between 
the parties according to the terms to which they had volun- 
tarily assented. But, in the case of treaty-compact between 
sovereigns, their several wills must act, not merely in its 
making, but to sustain its continued existence. 1 The stream 
cannot rise higher than its source ; the creature cannot be 
stronger than the creator. International law does not con- 
trol independent States as municipal law controls natural 
persons. 

If the Constitution began in contract, compact, league, 
grant, or cession, in which the States were parties, as sev- 
erally independent sovereigns, the several will of each 
State has been necessary for its continuance, as far as 
such State has been concerned, as much since, as at the 
moment of its adoption. Each had the capacity and the 
right, in the sense of capacity, to change its mind and repu- 
diate it the next day ; and at any time afterwards, as well. 2 

1 See Pomeroy, Const, Law, p. 39, note, that "this doctrine, that a sover- 
eign state cannot bind itself by any treaty or compact by which its sover- 
eignty is wholly or substantially surrendered or lessened, is now maintained 
by the leading writers on Public and International Law," citing several 
European authorities. 

In Mr. Webster's argument with Mr. Hayne, after the passage cited, ante, 
p. 109, note, he proceeded to say of his opponent : "Instead of answering this, 
he retreats into the general reflection, that it must result from the nature of 
things, that the States, being parties, must judge for themselves." Webster's 
Works, iii. 345. But this " general reflection " — the application of an 
axiom — was fully adequate to overthrow Mr. Webster's interpretation- 
argument ; that is, on the assumption, which he had accepted, that the 
States had been severally sovereign before the adoption of the Constitution. 
See also Brownson, Am. Bep. 240, 242. 

2 Brownson, Am. Bep. 196. 

Mr. Pomeroy, in Const. Law, § 54, relies on the position that the revolu- 
tion "left a united mass, a political entity, a nation possessing the high 
attributes of sovereignty which it had just exercised. The United States 
was then a fact, and no power but that which called it into being — the 



THEORY OF OUR NATIONAL EXISTENCE. 119 

The United States identical with the States United. 

■ * 

Doubtless, there may be irrevocable transfers of the pow- 
ers incidental to an independent political body, or person- 
ality. 1 Whether any can be truly transferred, unless all are 
transferred, is a different question. But, in any event, the 
transfer can only be made where there is some natural per- 
son or persons in actual being, who is, or who are capable 
of receiving and holding those powers, as they had been 
held by the former possessor. In the case of the Consti- 
tution, whether called contract, compact, league, grant, or 
cession, there was no such person in being to take the pow- 
ers supposed to be transferred, and the officials elected or 
appointed as instruments of those powers are not made 
such a person, by being, collectively, the government of 
the United States. 

The common orthodoxy may assert that the very object, 
operation, and effect of this transaction (by whatever name 
called) was to bring into life and continued being a per- 
sonality thus capable of receiving the powers which passed 
out of the States at the time, — a distinct person, that is, 
from the several States whose action made such person ; 
and one who may be properly called the United States, or 
the Union; although, as far as any thing can be learned 
from the name, and as far as can possibly appear to the 
eyes of the rest of the world, the United States and the 
several States united are identical ; that is, if the common 
notion is correct, that there can be no union except as 
there are some individuals to be united?? 

According to this idea, the several States by this trans- 
People — is competent to decree the national destruction." And he frankly 
says, ib. § 55 : " Grant that, in the beginning, the several States were, in 
any true sense, independent sovereignties, and I see no escape from the 
extreme positions reached by Mr. Calhoun." See also ib. § 56. 

1 Brownson, Am. Rep. 194. " That a nation may voluntarily cede its 
sovereignty is frankly admitted, but it can cede it only to something or 
somebody actually existing, for to cede to nothing and not to cede is one 
and the same thing." 



120 DIVISION OF POWERS. 

How Powers may be separated under Law. 

. , 

action merged a portion of themselves into a common sin- 
gle existence ; the existence called the Union, or the United 
States. So that it would appear that according to this 
idea, and strictly speaking, the several States are not parts 
of the United States. 1 

This idea involves the doctrine of the divisibility of 
sovereignty, or of the sum of sovereign powers, which I 
have herein assumed to be a thing impossible. 2 

In the case of natural persons living under municipal 
law, it is possible for them individually to give up a por- 
tion of the rights, means, capacities, powers, &c, belonging 
to each, severally, under the guarantees of such municipal 
law, and, by so doing, form a league, association, corpora- 
tion, or partnership, which shall exercise the contributed 
rights, &c, of each, while they, personally, still continue 
mutually independent in the possession and exercise of 
other rights, means, capacities, powers, &c, equally be- 
longing to them, severally, under the guarantees of such 
municipal law. 

But, in this case, the co-operating law, the will of the 
third party, the law-giving will of the sovereign, sustains 

1 Reading the history, as I have, I could not accept as correct Dr. Wool- 
sey's judgment, Pol. Science, ii. p. 251. " It is a great pity that the confed- 
eration and the revolution fastened on us the name United States, although 
it expresses a reality ; for it has ever been played false with, as if there were 
not something greater and higher than the separate States created by the 
Constitution. And the word sovereignty, which is used in the articles of 
Confederation and in the Treaty of Peace of 1783, as a quality pertaining to 
the States, is no longer applicable to them within the Union, and is carefully 
avoided in the present Constitution. It has 'paltered with us in a double 
sense ' as if there could be two sovereigns, one without any international 
powers, and many other properties essential to a true State, the other with 
these in full tale." Yet I accept the sentence immediately preceding this 
quotation : " So that the United States are the only true State, and its sov- 
ereignty the only true sovereignty." Also, the sentence whicli follows the 
same quotation : " It is a State formed by a Union without merging the 
existence of the members in that which they created ; " because I regard 
the United States and the States united, as identical. 

2 See ante, p. 106. This will be further considered in Chapter VII. 



THEORY OF OUR NATIONAL EXISTENCE. 121 

Possible and Impossible Transfers of Power. 

this division of these rights, powers, &c, belonging to each 
individual person ; and if a new being can be said to exist, 
in this case, holding these ceded powers, its existence 
depends upon the co-operating law. 

Whenever a real transfer of sovereign power may actu- 
ally have taken place, the transaction does not have the 
nature of contract, grant, or cession. 1 ! Always, in fact, and 
generally, in appearance, it depends on force. The posses- 
sion of independent political power is always matter of fact, 
or what is proved by history ; and never matter of right, or 
what is proved by law. Because it is itself the fact upon 
which the law is dependent ; and contract, grant, or cession 
must be dependent on law. 

If the several sovereignty of the States, before the trans- 
action, is assumed, the nature of the transaction must be 
the same whether called contract, or league, or cession, or 
grant, or any thing else. 

It might be admitted that the State governments had 
not received from the political people of the several States 
the authority to decide for them, on the adoption of the 
Constitution. But the argument for the indissoluble nature 
of the contract, or irrevocable nature of the grant, is not 
bettered by regarding it as the act of the people of each 
State, in distinction from the State governments ; 2 that is, 
on the supposition that the 'people of each State possessed 
independent sovereignty, either as a mass of population, or 
as an organic people. 

The tenacity with which this view has been held is due 
to a lingering, .faith in the historic possibility of a social 
compact, according to the common political theory of the 
last century. 3 It was supposed that the authority of each 

1 Philliraore, Int. Law, Part ii. ch. 6. 

2 On which Mr. Madison and others have laid great stress. See Madison's 
letter to Mr. Everett, Madison's Writings (Compare Brownson, Am. Rep. 
231); Story's Comm. § 362; Webster's Works, iii. 346. 

3 Brownson, Am. Rep. 230, 239; Von Hoist, i. 30. 



122 COMPARISON OF THEORIES. 

Strength of the State-Rights Theory. 

State, or of the organized political people of each State, 
had actually come about by a cession from each individual 
person of a portion of his inherent personal sovereignty. 1 
With some, the idea has been that afterwards, in like man- 
ner, these States ceded to the constituted Government, or 
to the persons called the Union — the United States, a por- 
tion of the sovereignty thus acquired ; and that, as natural 
persons were, by the theory, bound in the social compact 
to form a State, so the States are supposed to be bound, in 
the secondary compact, to form the United States. The 
States also are supposed to reserve some of their powers, 
as, in the original social compact, the individual man, or 
woman, or child, reserved certain rights. 2 

The simple statement of the theory ought to be enough 
to shatter all that has been built on it. It is an idol that 
has been ground to powder so often that it seems useless 
to argue about it now, if anybody still believes in it. 

The historical basis of the original sovereignty of thir- 
teen States being accepted, — those who in the name of 
State-rights have maintained the right of peaceable seces- 
sion are fully justified in charging their opponents with 
offering, in the place of argument, nothing better than 
mere assertion of the indissoluble nature of the compact, 
league, grant, cession, or whatever else it may be called. 

1 See Preamble to the Constitution of Massachusetts, ascribed to John 
Adams. Even Hamilton said: "That portion of sovereignty to which each 
individual is entitled can never be too highly prized." Works, ii. p. 315. 

2 Mr. Madison's idea, as I understand from his letter to Mr. Everett, was 
that, whoever may have been the grantee, the grant at the adoption of the 
Constitution was made by each natural person. The theory being that, on 
that occasion, the older social compact, by which the States had been created 
at the Revolution, was dissolved ; by whose consent is not stated. Each 
natural person recalled his supposed former grant of sovereign power, and 
made a new cession; giving part to the United States, or the people, or 
nation, or government ; another part to the State of which he was inhabitant, 
and reserving part to himself. A similar idea appears in Chief Justice Jay's 
opinion in Chisholm v. Georgia, 2 Dallas, 471, cited as authority in Story's 
Comm. § 349, and in Story's own argument, ib. § 340. 






THEORY OF OUR NATIONAL EXISTENCE. 123 

Who were the People, in the Revolution. 

But it is contrary to the facts to suppose that, at any- 
time since the separation of the thirteen colonies from the 
Empire of Great Britain, a corresponding number of States 
have existed in their places ; each possessing, in severalty, 
the sum of sovereign powers belonging to every indepen- 
dent state or nation, and capable of severally ceding all, 
or a portion of those powers to any person who might be 
capable of receiving them. 

It is contrary to the facts to suppose that thirteen colo- 
nial governments acquired, each for itself, within its original 
jurisdiction, any of those powers which the imperial gov- 
ernment had before exercised therein, or, generally, that 
they acquired any sovereign rights whatever. 

It is equally contrary to the facts to suppose that those 
colonies were resolved into a mere aggregate of natural 
persons, without political organization, who then, according 
to some "law of nature," formed themselves by "social 
compact " into new political bodies. 

In each colony "the freemen" or electors had alwa} r s 
had a primal corporeity, by individually uniting the com- 
mon national character of British subjects and the local 
character of constituent members of a provincial or char- 
tered colony. The -existence of such a political people 
underlaid all colonial political action. It was ordinarily 
manifested for municipal and provincial objects, either 
directly or through elected representatives. But the 
same persons had always claimed a right to act, in the 
same corporeity, for national objects, as political members 
of the British Empire. This claim, in a variety of forms, 
was the very basis of the difficulties with the British gov- 
ernment. 

In the revolution, this claim developed into that com- 
bined action of the political peoples of the several colonies 
which we call the Revolution ; so that their national exis- 
tence^ one political people claiming sovereignty, coincided 



124 THE POLITICAL PEOPLE. 

A Constitution known by the Possession of Power. 

with their several self-government as States. 1 Political 
independence, or the possession of sovereign power, is a 
fact determined by manifestation of force or power to hold 
sovereignty, or to be independent. There is no legal right 
in the matter : and. if any moral right is distinguishable, 
it is entirely barren of political consequences. Here, the 
might makes the right. 2 In the case of the American re- 
public the force was in the national corporeity in which the 
political people of each colony was a constituent. Sever- 
ally, the colonies had no force adequate to sustain either 
local or external sovereignty or independence. 

It was the political peoples of the colonies, acting in 
union as one political personality, which, being the actual 
possessor of the sovereign power to make law, did, as law- 
maker, determine every thing which could be the object 
of legal knowlege, including the written constitution itself. 
But this possession of sovereign power by this political 
people, thus composed, is, "of course, an object of political 
knowledge as distinguished from legal knowledge, and, as 
such, may in a certain sense be termed the actual constitu- 
tion of the nation. 3 

1 Br the statements to he made in this chapter, I would reject as utterly 
false, the idea which some have set up that the political existence of the sev- 
eral States was usurpation as against the people of the whole thirteen colonies 
regarded as a mass of individuals : an idea first broached apparently by 
J. Q. Adams : " Where then did each State get the sovereignty, freedom, 
and independence which the articles of confederation declare it retains ? not 
from the whole people of the whole Union, not from the Declaration of Inde- 
pendence, not from the people of the State itself. It was assumed by agree- 
ment between the legislatures of the several States and their delegates in 
Congress, without authority from, or consultation with, the people at all." 
Discourse on the Constitution, p. 19. Perhaps Mr. Adams only meant to 
question a claim of the organized State governments to be the possessors of 
supreme power. Compare Von Hoist, vol. i. p. 22, and the notes. But the 
same idea of usurpation was more fully asserted in the Princeton Eeview, 
October, 1861, by J. H. Mcllvaine, D.D., Professor of Political Science, cited 
by Mr. Pomeroy in his Const. Law, p. 43, with the remark: "The fore- 
going language is entirely correct." 

- Brownson, Am. Rep. 201. 

3 Brownson, Am. Bep. 218. " The Constitution of the United States is 



THEORY OF OUR NATIONAL EXISTENCE. 125 

The Political People not changed in the Revolution. 

But the integral existence of the political people of each 
colony was not interrupted. It was this people of a colony 
or State which, as the integer, participated, in the com- 
bined possession of sovereignty, with the integral people of 
each other colony or State. 

The individual natural persons never held sovereign 
power. Individual natural persons never can, except as a 
corporation sole; like a king or absolute monarch. The 
local governments which had been the depositaries of the 
power of the crown as well as of that of the colony, con- 
tinued only so far as they became the representative in- 
struments of such a political people. 

The colonial corporeities were all included under one 
empire, and the colonists, as to each other, were all of one 
political national state, over which all sovereign powers, not 
exercised by the local governments, if these governments 
had any that could be called such, were exercised by the 
single undivided authority of the crown and parliament. 
Their relative position was not changed when they were 
jointly separated from the rest of the British Empire ; 
when the political peoples of these States united exercised 
sovereignty as a unit, by maintaining, in union, all the 
power before exercised by the local governments, and by 
the crown and parliament. 1 

twofold, written and unwritten, the constitution of the people and the consti- 
tution of the government. The written constitution is simply a law ordained 
by the nation or people instituting and organizing the government; the un- 
written constitution is the real or actual constitution of the people as a state 
or sovereign community, and constituting them such or such a state. It is 
Providential, not made by the nation, but born with it. The written consti- 
tution is made and ordained by the sovereign power, and presupposes that 
power as already existing and constituted." 

1 But I recognize no history in a statement like this : " The States were 
always, in respect to the higher powers of sovereignty, subject to the control 
of a central power." Cooley's Const. Limitations, p. 6. Or like this : " The 
Congress of 1775 assumed those powers which had been exercised by the 
crown and parliament" (ib.), if the meaning is that the Congress was a 
"central power," a person holding these powers independently of the States 
which elected and sent the deputies who constituted the Congress. To be 



126 THE POLITICAL PEOPLE. 

Continuation of a Political People. 

When this occurred, the powers which before had been 
severally exercised b} r the colonial governments continued, 
as a general rule, to be severally administered by new 
organs of the political people of each State ; while that 
people, in union with those of the other States, and by 
another organ, more or less perfectly adjusted to circum- 
stances, administered other powers ; some of which had, 
but more had not, been exercised by the colonial govern- 
ments. 

Thus the united political people of the colonies, both in 
internal and external relations, presented themselves with 
all other inhabitants of the same territory as a sovereign 
nation, — the United States of America, among other 
nations. 

The political people of the colonies could not have acted 
at all, or, to change the form of expression, the people of 
the colonies could not have acted politically at all, except 
as they were already organized by law. 1 Their individual 
political capacity was not a quality inherent or primordial, 
as the right of all natural persons. The colonists, indi- 
vidually, had no political capacity as a quality inherent in 
each ; either as the right of all natural persons, or as the 
right of all British subjects. They held it? as members of 
the corporate bodies which we call the States. It was 
therefore the political peoples of the several States, as so 
many integral personalities, who thus, in union and not 
otherwise, had primordial existence as an aggregate of 
personalities holding sovereignty as a unit. 

It was then of necessity that, in exercising sovereign 
powers for national objects, the political people should be 
known only as existing in those primary political unities 

such a power-holder the characteristic of continuity must exist, which does 
exist in the case of the political people of the States, but cannot in the case 
of any governing body which depends for renewal on election of its members 
by somebody else. 

1 Woolsey, Pol. Science, § 75, on the question " What is the people 1 " 



THEORY OF OUR NATIONAL EXISTENCE. 127 

Difficulty of Verbal Statement. 

which we call the Stales, identical with those • which, for 
local objects, or for instituting State government, exercised, 
in severalty, the residue of sovereign powers belonging 
to the same people. 1 

This doctrine as to the investiture of sovereignty in the 
organic political people, as distinguished from the people 
as a mass of population without reference to organization, 
has been thought untenable by some, 2 and the opposite has 
been very decidedly affirmed by several recent writers on 
our public law ; some regarding such organic people as 
only representatives of the people considered as a mass of 
inhabitants. 3 

There is an intrinsic difficulty in giving sufficiently clear 
expression to any views on these political questions, which 
arises, mainly, from the ambiguity of all words conveying 
abstract ideas. Mr. Pomeroy, in his Introduction to the 
Constitutional Law of the United States, § 29, has done 
me the honor to mention me as having, in a work published 
in 1858, sustained, together with Dr. Brownson and Mr. 
George P. Marsh, a view of the investiture of sovereignty 
in the " people of the United States," which he has fully 
stated in § 28 of his work, and of which he says, ib. § 29, 
that " this, in substance, is the view of the Constitution 
advocated by Hamilton, by Jay, by Marshall, by Story, 

1 Brownson, Am. Rep. 222. "The States severally simply continue the 
colonial organizations, and united they hold the sovereignty that was origi- 
nally in the mother country. But, if one people, they are one people exist- 
ing in distinct. State organizations, as before Independence they were one 
people existing in distinct colonial organizations. This is the original, the 
unwritten, and providential Constitution of the people of the United States." 

2 See Jameson's Const. Convention, p. 63. 

3 See, particularly, ante, p. 114 note, and the whole of Chapter II. of 
Jameson's Constitutional Convention, as an elaborate and impartial review 
of opinions on the question. Pomeroy's Const. Law, § 8, says, not in the 
government, " nor in the body of electors who immediately choose, but in 
the total aggregate of persons who are members of the State, and who, by 
the present constituted order of things, are primarily represented by the 
existing body of electors, and ultimately by the legislative and executive 
officers." 



128 THE POLITICAL PEOPLE. 

The Distinction hitherto Neglected. 

by Webster, and upheld by the judgments of the Supreme 
Court during its earliest years." I should, for my own 
part, hesitate to accept the position attributed to me, as I 
have been quite unable to learn what view these eminent 
authorities did hold on this subject. Besides, as far as I 
understand Professor Pomeroy's statement of this view, 
especially as further explained in other parts of the same 
work, it is fundamentally different from that which, I 
think, was very clearly stated by Dr. Brownson, and cer- 
tainly does not at all correspond with that which I had in- 
tended to maintain in the work referred to ; though it may 
agree with that of Mr. Marsh. 

It would appear, however, that Judge Jameson had not 
had the like understanding of either Dr. Brownson's lan- 
guage or my own. 1 

The distinction here made — between the people, as a 
mass of individuals living in one national domain, and the 
people, as those individuals who visibly act in corporate 
political life, through constitutions depending on their 
votes — may seem to many persons more metaphysical 
than political, and, at any rate, without any practical 
consequences, if it be once admitted that, in either case, 
there is a people of the United States holding the total 
of sovereign power. More or less disagreement on this 
point has existed from a very early period, though the 
distinction may not have been, hitherto, very clearly 
drawn. It is true that the distinction may have no direct 
bearing on the question of State sovereignty, as opposed 
to the sovereignty of the United States. The advocates 
and the opponents of "State-Rights" could not be discrim- 
inated by their difference on this subject. The definition 
which Chase, C. J., in Texas v. White, ante, p. 10, note, 
cited from Penhallow v. Doane, by mistake, as that of 
Paterson, J., occurs in the opinion given in that case by 



Compare Jameson's Const. Convention, §§ 60, 61. 






THEORY OF OUR NATIONAL EXISTENCE. 129 

The Distinction an Important One. 

Iredell, J. (of South Carolina), who, in Chisholm v. Georgia, 
held that the State, as a sovereign, could not be sued. It 
was the prevailing doctrine of the time, together with that 
of the social compact, of which, indeed, it was only one 
form. This may be seen by all the opinions delivered in 
this last-named case, and especially in that of Judge Wilson, 
which is one of the standard citations for this idea. 

I may, further on, be able to show that the distinction 
has results of widely-reaching practical importance ; agree- 
ing as I do with Dr. Brownson on this point, generally, and 
in the truth of the following, from his " American Repub- 
lic," p. 10 : — 

" But American statesmen have studied the constitutions 
of other States more than that of their own, and have suc- 
ceeded in obscuring the American system in the minds of 
the people, and giving them in its place pure and simple 
democracy, which is its false development, or corruption. 
Under the influence of this false development the people 
were fast losing sight of the political truth, that, though 
the people are sovereign, it is the organic, not the inorganic 
people, the territorial people, not the people as simple 
population, and were beginning to assert the absolute God- 
given right of the majority to govern. All the changes 
made in the bosom of the States themselves have consisted 
in removing all obstacles to the irresponsible will of the 
majority, leaving minorities and individuals at their mercy. 
This tendency to a centralized democracy had more to do 
with provoking secession and rebellion than the anti-slavery 
sentiments of the Northern, Central, and Western States." 1 

I assume here that the question is, of necessity, a ques- 
tion of fact : Who were those who did actually exercise the 

1 See also Brownson's statement of the foundation of the general doc- 
trine of the sovereignty of the people. Am. Rep. pp. 71-77. 

On reading Mr. Pomeroy's citation of Dr. Brownson as having concurred 
in his own view, I must confess a doubt as to the power of language to con- 
vey ideas on this subject. 



130 THE NATURE OF THE QUESTION. 

The Question is one of Historical Fact. 

power ? And it is in this way that Madison presented it 
(Madison's Writings, iv. 203) : " It is fortunate when dis- 
puted theories can be decided by undisputed facts. And 
here the undisputed fact is that the Constitution was made 
by the people, but as embodied into the several States 
which were parties to it, and therefore made by the States 
in their highest authoritative capacity. . . . The Constitu- 
tion of the United States being established by a competent 
authority, by that of the sovereign people of the several 
States who were parties to it," &c. 

This fact, attested by undisputed history, could not have 
been put out of existence by any words in the articles of 
Confederation or in the Constitution. These documents 
might have contained express averments that each State 
was severally and intrinsically sovereign and independent ; 
or others, that all sovereign power was vested in the inhab- 
itants as so many millions. But in face of the facts, as 
they actually occurred, these statements would have been 
empty wind. 

American writers who had followed Burlamaqui and 
Vattel in thinking that they must refer all legitimate gov- 
ernment to a contribution by each natural person of a suffi- 
cient portion of his or her inborn, inherent sovereignty, 
were accustomed to find in the State governments and the 
general government the recipients of this contribution from 
the inhabitants of the United States. But, if there has ever 
been any such contribution here, the recipient was the polit- 
ical people of the States, being united. It is they who cor- 
respond to the governments of the older writers. 

This political people was the supreme-power holder, by 
the grace of God, if one chooses to say so ; by the " provi- 
dential constitution," as Mr. Brownson called it ; or by the 
malice and device of the devil, if any one prefers to look 
that way for a beginning ; 1 or by " legitimate usurpation," 

1 As may very likely be the opinion of some ultra Ultramontanists ; 



THEORY OF OUR NATIONAL EXISTENCE. 131 

Relation of the Government to the Sovereign. 

as some might say ; or simply, as I say, by fact, because so \ 
it was, and there is no rubbing it out. 

This people only delegated its power to the govern- 
ments, State or national, and was the sovereign still. 
These governments existed only by the continuing will of 
this people. 

Prior to the adoption of the Constitution, there were 
periods when the existing governments were not formally 
adjusted to the actual possession of supreme power. But 
it would have been more of an anomaly if this had not oc- 
curred during a revolutionary period. The non-existence at 
any particular time of a government holding all the powers 
afterwards deemed essential, in external and internal rela- 
tions, for general or common interests ; or the fact that, at 
certain times, the State governments were required to co- 
operate in order that some of those powers should be 
exerted, would not show that all or any sovereign power 
was then held, in severalty, by the States. 

The action of conventions in each State convoked with 
special reference to co-operation in the formation of a gen- 
eral government, and their consenting or non-consenting at 
certain times, does not show that the States severally pos- 
sessed powers which they could cede or withhold. Nor 
does the fact that there were times when certain States 
had not co-operated in the government which represented 
the powers directed to and held for common and general 
objects, show that the people of those States were not then 
a constituent portion of the political people of the United 
States. 

as perhaps it was of Count Joseph De Maistre, author of the well-known 
Essay on the Generative Principle of Political Constitutions. The ascrip 
tion of the American Constitution to the special intervention of the Deity 
has heen very common in our legal literature. It may be as well for us to 
remember that there have been and still are godly people in the world who 
believe that all popular governments, and even all which do not recognize 
some royal dynasty by divine right, are illegitimate and sacrilegious. 



132 STATES SOVEREIGN IN UNION. 

Majority Rule not Applicable. 

The whole period, until the full adoption of the Consti- 
tution, was abnormal in the relation of the form of govern- 
ment to the possession of the sovereign power. 

In the adoption of successive governments for general 
political action, each State consented without reference to 
any relation between a majority and a minority of States ; 
because the autonomic action of the people of the United 
States is determined by the several wills of the integral 
people of each State, and these several wills could not be 
controlled by any rule of law, being autonomic. The will 
of no State was determined by the action of a majority of 
all the States ; yet, except as one of the United States, no 
State had any such will. 

The will of the whole number is known from the action 
of the majority only when the whole number are under law. 
In this instance the whole number, collectively, were above 
law ; therefore, the majority rule did not apply. But this 
does not show that, as argued by Madison in the Federal- 
ist, 1 and by others, each State in consenting to these suc- 
cessive general governments was acting as possessor, in 
severalty, of the sum of sovereign power, and agreeing for 
a federal agent of government. 

The possession of sovereign power by the people of the 
States only as associated or united States is not disproved 
by the fact that the government, under the Constitution 
of 1789, went into operation when only nine States had 
ratified the instrument. It cannot be inferred that one or 
more several States might, in accordance with the then 
existing location of sovereignty, have set up for an alien 
government. 2 It would even then have been only a ques- 

1 Federalist, No. 39 ; Calhoun's Works, i. p. 150, 151. 

2 Judge Coole.y, in Constitutional Limitations, p. 9, says : " Without, 
therefore, discussing or even designing to allude to any abstract theories as 
to the precise position and actual power of the several States at the time of 
forming the present constitution (notes this as being discussed in Gibbons 
v. Ogden, 9 Wheat. 1), it may be said of them generally, that they have at 



THEORY OF OUR NATIONAL EXISTENCE. 133 

Government instituted by Nine States. 

tion of power, physical power ; the only tact determining 
the possession of sovereign power in absolutely separate 
existence. Such a separation of a State, after the colonies 
had established, as States in union, their independence in 
respect to the British Empire, would have been revolu-t 
tionary secession, as to the other States, being in union. 1 

The fact that, even before all had co-operated ill the gov- 
ernment under the Constitution, no State severally exerted 
the powers delegated by that instrument, is evidence that, 
except as delegated by the associated peoples of the States, 
these powers could not be delegated to any body. 2 

all times been subject to some national government, wbich has exercised 
control over the subjects of war and peace and other matters pertaining to 
external sovereignty ; and that when the only three States which ever ex- 
ercised complete sovereignty accepted the Constitution and came into the 
Union on an equal footing with the other States, they thereby accepted the 
same relative position to the general government, and divested themselves, 
permanently, of those national powers which the others had never exer- 
cised." These propositions appear to me to stand in self-contradiction, and, 
so far as they can be reconciled, to be inconsistent with the general theory 
sustained by the author. 

1 Dr. Woolsey, Pol. Science, ii. p. 249 : " And doubtless the other States, 
if unanimous, would have been justified at such a serious crisis, in crushing the 
little obstacle to perfect union by war, if that had been the necessary means 
for the end before them." By stating the matter in this way. Dr. Wool- 
sey presents the dilemma as a question of international right, to be settled 
by methods adapted to differences between independent nations. It is indeed 
in this aspect that it is presented by Madison, in No. 43 of the Federalist. 
He recognized the " delicate nature " of the question, but declined attempt- 
ing an answer. 

Dr. Brownson's view is more consistent (Am. Rep. p. 288) : " Hence, if 
nine States had ratified the Constitution and the other four had stood out 
and refused to do it, which was within their competency, they would not 
have been independent sovereign States outside of the Union, but territories 
under the Union." That is, they had it " within their competency," to with- 
hold co-operation in government for an indefinite period ; and an obstruction 
of this sort is incidental to the investiture of sovereignty in any aggregate 
of personalties like an oligarchy. 

2 "In the treaty of 1783 with Great Britain called Sovereign Stales, which, 
however, never made a treaty separately with foreign nations, never be- 
longed, in their separate capacity, to the community of nations." Woolsey's 
Pol. Science, i. p. 204. Foreign nations, at that time, had no occasion to 
decide for themselves whether the States were severally sovereign, or sover- 



134 CONTINUITY OF A POLITICAL PEOPLE. 

Various Governments under one People. 

The Revolutionary or Continental Congress, July 4, 1776, 
declared the " United Colonies " to be free and independent 
States, "in the name and by the authority of the good peo- 
ple of these colonies." But the delegates to that Congress, 
before as well as after the establishment of State govern- 
ments, had received their appointment from electoral agen- 
cies which, in their connection with the people whom they 
claimed to represent, were very different in the various 
colonies. 1 

In the government, under the Articles of Confederation, 
the united political people of the States exercised their 
power for general national purposes, by the intervention 
of the same organs by which they exercised power for local 
or State purposes. 2 

In the government, under the Constitution, the same 
political people, without a revolution, i. e., without any 



eign only in union. But some foreign nations in 1861 were, at least, very 
near declaring their opinion on this point, by the time and manner of their 
recognition of the Southern belligerents (ante, p. 56), though, as it stands 
to-day, no foreign nation is committed to any decision. In the second edition 
(1871) of Sir Robert Phillimore's International Law, i. p. 163, it is said : " The 
recent civil war between the Southern and Northern States, and the con- 
quest of the latter after a fierce and desperate contest, has not so affected 
the permanent International relations of the Confederation with Foreign 
States as to require any special notice in this place. Whether a correct 
view of the Constitution and of the facts of the case was, or was not, taken 
by the Southern States, who maintained that they formed part of the Union 
upon conditions expressed in the terms of the great Charter of the Constitu- 
tion, and that the violation of them justified their secession; or by the 
Northern States, who maintained that this secession was unjustifiable in 
fact, and an act of treason in law ; whether the employment of armies by 
the Northern States to coerce the Southern States, and compel them to re- 
main in an Union which they desired to leave, was, or was not, in accord- 
ance with the principle of freedom upon which the United States justified 
their secession from Great Britain, are not subjects to be discussed even indi- 
rectly in this chapter." The author, it will be noticed, uses the term Con- 
federation as a proper one for the country in its international relations. 

1 Curtis's Hist, of the Const., i. p. 11, note. 

2 Curtis's Hist, of the Const., i. p. 245 ; Kent's Comm., i. 208 ; Journal of 
Cong., 1775, May. 






THEORY OP OUR NATIONAL EXISTENCE. 135 

What has been the Continuing Fact. 

shifting of sovereign power, 1 exercised their powers for 
national purposes by the immediate action, through special 
representatives, of the political people of each State. 

The possession by this "people of the 'United States " of 
the powers exerted by a general government, co-existent 
with the possession by the same people of other powers, ex- 
erted by the State governments, continued, in manner and 
form more or less distinctly recognized, from the time of 
the Revolution onward ; and, prior to the late civil war, no 
political people or body politic had appeared, on the terri- 
tory recognized by foreign nations from time to time as 
belonging to the United States, in any public international 
relation, except as one of the United States, or been rec- 
ognized by foreign nations or by any State of the Union 
as using or holding, in severalty, the powers exerted by the 
general government. Nor, except as thus being one of the 
United States, had any such political body used or held 
independently the residuaiy powers. 2 | 

1 The contrary of this is stated by Taney, C. J., in Dred Scott v. Sanford, 
19 Howard, 441 : " When the present United States came into existence, 
under the new government, it was a new political body, a new nation, then 
for the first time taking its place in the family of nations." 

Some would regard the change from the Confederation to the Constitu- 
tion as essentially revolutionary, as Woolsey, Pol. Science, ii. p. 249, and 
Cooley, Const. Limitations, p. 8, which it was if, in the adoption of the Con- 
stitution, the nation or people as a mass, assumed and exercised sovereign 
power, or if three States became alien nations, when it was adopted by ten 
other States, as Judge Cooley presents it. 

2 Brownson, Am. Rep. 221. " The key to the mystery is precisely in this 
appellation United States, which is not the name of the country, for its dis- 
tinctive name is America, but a name expressive of its political organization. 
In it there are no sovereign people without States, and no States without 
union, or that are not united States. The term united is not part of a proper 
name, but is simply an adjective qualifying States, and has its full and proper 
sense. Hence, while the sovereignty is and must be in the States, it is in the 
States united, not in the States severally . . . but there could be no sover- 
eign union without the States, for there is no union where there is nothing 
united. 

"This is not a theory of the Constitution, but the constitutional fact 
itself. It is the simple historical fact that precedes the law and constitutes 
the law-making power. . . . 



136 DELEGATING STATES. 

Delegation : By Whom and to Whom. 

The power thus held by the people of the United States, 
being sovereign jDower, was taken and held by them volun- 
tarily, of autonomic will and choice. Yet that will was 
not the will of an integral or unitary people, but the will 
of the combined peoples of the States. The power belonged 
to them in their union : but the participation of the people 
of each State was voluntary, as sovereign. They were not, 
and could not, in the nature of the case, be obliged to 
participate in the possession of the powers of sovereignty. 

By those who hold that each State had a several inde- 
pendent sovereignty, the second of the Articles of Confed- 
eration has been much insisted on : — " Each State retains 
its sovereignty, freedom, and independence, and every 
power, jurisdiction, and right which is not by this confede- 
ration delegated to the United States in Congress as- 
sembled." 

But the question is, — What was " its sovereignty," &c. ? 
If the States are looked upon as delegating severally, the 
question still is, — How did they hold the power they could 
delegate ? This declaration could not make the condition 
of things which existed before it, and which determines the 
value of the declaration. It is a piece of testimony, to be 
compared with other existing evidence. 

The language or general tenor of the written constitu- 
tion corresponds with the view here taken of the pre-exist- 
ing fact. It grants or conveys powers only by instituting a 
general government to be the instrument of those powers.i 

" This Constitution is not conventional, for it existed before the people 
met or could meet in convention. They have not, as an independent sover- 
eign people, either established their union, or distributed themselves into 
distinct and mutually independent States. The Union and the distribution, 
the unity and the distinction, are both original in their constitution, and 
they were born United States. . . . The Union and the States were born 
together." 

1 In Article X. of the Amendments it is said : " The powers not delegated 
to the United States by the Constitution," &c. This statement of the recip- 
ient of the powers delegated is in discrepancy from the rest of the instru- 



THEOEY OF OUR NATIONAL EXISTENCE. 137 

Chisholm v. Georgia; as Authority. 

This written constitution is a political fact, just as any 
statute law is a political fact so far as it may, by being en- 
forced, prove that certain political powers are actually 
held and exercised by certain persons. The written con- 
stitution, so far as it is carried into effect according to its 
provisions, is a political fact, by becoming evidence that 
the use of some of those sovereign powers which belong 
to the States continuing in union is determined by their 
joint will and action, through the constituted government, 
and that the use of the residue of those powers which 
belong to the States continuing in union is determined by 
their several wills and action, through the State govern- ^ 
ments. 

Among all the early opinions which supported, more or 
less distinctly, some theory of public law opposed to the 
doctrine of State-Rights, so called; none have been more 
triumphantly cited, by juriscs of the class which used to 
be called Federal, than those of Chief Justice Jay and 
Judge Wilson sustaining the decision of the majority of 
the court in Chisholm v. Georgia. There are probably 
few among the readers of such citations in the pages of 
Story, or of others who have written on our public law 
since the war, who think of asking what is not usually 
told with these citations, that is, what benefit the plaintiff 
took by the judgment of the court in his favor against 
the State. Few who read these modern works will take 
the trouble to refer to the ill-printed and now dingy 
pages of 2 Dallas, on page 480 of which is the conclu- 
sion of the report of this case : — 

" Ordered, that unless the said State shall either in due form ap- 
pear, or shew cause to the contrary in this Court, by the first day of 

ment, and should be construed to read in harmony ; that is, as meaning, the 
powers not granted by the United States to the government, &c. 

Those whose theory requires a United States, holding sovereignty, which 
is not identical with the States united, think the term delegated "unfortu- 
nate;" as does Dr. Woolsey, Pol. Science, ii. p. 251. 



138 CONSTITUTION AS EVIDENCE. 

Chisholm v. Georgia ; as Authority. 

next Term, judgment by default shall be entered against the said 
State." 

The day after this decision was pronounced, a resolution 
was offered in the House of Representatives by Theodore 
Sedgwick of Massachusetts, " a very decided Federalist," 
for an amendment to the Constitution, protecting the 
States against suits by individuals. 1 

The State had never appeared in the case, 'and had not 
been represented by counsel on the argument. ISTor did 
the State appear after this decree, or show cause to the 
contrary of any thing. On the page of 2 Dallas, above 
cited, in a note by the reporter, it is said : — 

" In February Term. 1794, judgment was rendered for the Plain- 
tiff, and a TVrit of Enquiry awarded. The Writ, however, was not 
sued out and executed ; so that this cause, and all the other suits 
against States, were swept at once from the Records of the 
Court, by the amendment to the Federal Constitution, agreeably to 
the unanimous determination of the Judges in Hollingsworth et al. 
v. Virginia, argued at February Term, 1798." 

If the judgment of the Supreme Court in this case had 
been carried into execution, by the authority of the gen- 
eral government, against the will of the State, as against 
a party to a suit at law, the clause in the Constitution 
upon which the court asserted its jurisdiction would have 
been evidence of the political fact that the application of 
justice between " a State and citizens' of another State " 
was among the powers which were to be exercised in the 
joint will and action of the States by the general govern- 
ment. The opinions of the several justices who had sus- 
tained that view might then have had value, as part of the 
evidence of that political fact. Though even in that case 
those judges could not have settled the political history of 
the formation of the Constitution. 

1 Hildreth's History of the United States, 2d Series, i. pp. 42, 408. 



THEORY OF OUR NATIONAL EXISTENCE. 139 

Sovereignty distributed in Exercise. 

But of what possible authority to determine the political 
duty of the citizen, in a crisis like that of 1861, are the 
opinions delivered in a case which, with all the other suits 
against the States then pending, was swept from the records 
of the court, by its own unanimous decision, almost a hun- 
dred years ago ? 

Sovereignty, being the attribute of an aggregate of polit- ' 
ical personalities, was, by the written constitution, dis- 
tributed in exercise ; but it was not divided in possession. 1 
It was only as to this distribution that the provision as to 
amending by three fourths was declared. 2 The possession 
of that sovereignty by the States united was beyond any 
constitutional amendment,- because it was, and has been 
above this or any written constitution ; because it has been 
the primary political fact for which no rule, written or 
unwritten, could be stated. 3 

According to this view of the fact above the law, the 
fact on which the written constitution, as law, rested, 
even those powers which, in Article X. of the Amend- 
ments, are said to be " reserved to the States, or to the 
people," were not possessed by the States, or by the people 

1 It would seem that Mr. A. H. Stephens's idea was very nearly this. At 
least, he recognizes the distribution of sovereign powers as something distinct 
from the possession of sovereignty. Compare History of the War between 
the States, vol. ii. p. 23. 

' l Therefore this provision does not prove, as argued by Mr. Pomeroy, 
Const. Law, § 111, that the Constitution does not derive its authority, as 
law, from the States as the possessors of sovereign power. 

3 In the supposed case of an attempt of three fourths, by an amendment, 
to destroy the political existence of the other fourth of the States, or of a less 
number, — that could only be regarded as revolutionary change of the ulti- 
mate seat of power. The provision in Article V., " that no State without 
its consent shall be deprived of its equal suffrage in the Senate," might be 
considered as the acknowledgement of this. Though, what is there in the 
Constitution as law for the States, to prevent three fourths from doing away 
with the Senate altogether ? or what is there to secure a State's representa- 
tion in the House of Representatives ? If all depends upon words in the 
Constitution, there is nothing to prevent the same provision from being 
amended out of existence. 



140 SOVEREIGNTY OP STATES EN" UNION". 

The Sovereignty of a Democratic Oligarchy. 

of the States, as severally sovereign, but as jointly sover- 
eign only, that is, as they were united with the other 
States. They would not, as such, have held these reserved 
powers, unless they, at the same time, held the powers 
delegated to the general government. It was because they 
were United States, and only as they were such, that they 
held either class of powers. 

Thus the States in Union held sovereignty as a unit. 

Sovereignty in the American Republic was not popular 
sovereignty ; the sovereignty of so many millions of human 
beings. The political people, organized as the people of 
the States, held it, and might be described as a democratic 
oligarchy. 1 

For this reason the name, the United States of America, 
accorded with the fact, and was the proper name. 2 

1 Mr. John Austin, an English writer whose acuteness of thought and 
lucidity in statement hare often been acknowledged in .our own legal litera- 
ture, speaking of " the supreme government of the United States of Amer- 
ica," in his work, The Province of Jurisprudence Determined, vol. i. p. 222, 
has said : " I believe that the sovereignty of each of the states and also 
of the larger state arising from the Federal Union resides in the states' 
governments as forming one aggregate body, meaning by a state's gov- 
ernment, not its ordinary legislature, but the body of its citizens which 
appoints its ordinary legislature, and which, the Union apart, is properly 
sovereign therein. If the several immediate chiefs of the several United 
States were respectively single individuals, or were respectively narrow 
oligarchies, the sovereignty of each of the states, and also of the larger 
state arising from the Federal Union would reside in those several indi- 
viduals, or would reside in those several oligarchies, as forming a collective 
whole." Jameson, in Const. Convention, § 60, cites this view as erroneous, 
if understood as identical with that taken by Dr. Brownson and myself. 
Mr. Pomeroy also, in Const. Law, p. 29, rejects this, together with Austin's 
view of sovereignty in general, and considers it as involving the conclusion 
that there is no sovereign in the United States (ib. § 11, note), which result, 
as I understand the meaning of words, is a characteristic of the theory held 
by himself and Mr. Jameson, or by all who look for the sovereign of each 
country in the nation at large, or the inhabitants as a mass of individuals. 

2 " The sovereign people are not the people outside of State organization, 
nor the people of the States severally, but the distinct people of the several 
States united, and therefore most appropriately called the people of the 
United States." Brownson, Am. Rep. 227. 



THEORY OF OUR NATIONAL EXISTENCE. 141 

Summary of the Historic Fact. 

This then is history, — The inhabitants of the United 
States constituted a nation in which sovereignty was mani- 
fested by the organized political people of the several 
States, being united as States, and was exercised by a 
general government as the instrument of that organized 
political people of such States, being so united, and by State 
governments as the instruments of the political people of 
each several State, being united with the other States. 

The political people of the several States in union insti- 
tuted the general government, under the Constitution as 
law, to be the means for exercising their sovereignty over 
the people considered as a mass of inhabitants without 1 
reference to State boundaries. 

And, negatively, — The people of the United States, con- 
sidered as a mass of inhabitants without reference to State 
boundaries, did not institute the general government, under 
the Constitution as law, to be the means for exercising their 
sovereignty over the political people of the several States. 1 

Sovereign power cannot be held except by consent or 
will of the holder. No State, therefore, could be bound, 
as by law, to hold either the " delegated " or the " re- 
served " powers. 

But, by the nature of the case, a State could not hold 
either one of these classes of powers unless, at the same 
time, it held the other also, by remaining united with the-\ 
other States. * 

1 The proposition here denied is, however, precisely that which was 
affirmed by Chief Justice Jay and Judge Wilson in Chisholm v. Georgia, see 
ante, p. 108, IX., and note ; and which has reappeared in later cases in the 
Supreme Court, see ante, pp. 20, 31 : and is now presented in a more system- 
atic dress in the works of several recent writers on our political history and 
public law. See ante, pp. 114, 127. 



142 THE APPLICATION OF THE THEOKY. 

Mr. Lincoln's theory of the Union. 



CHAPTER V. 

The Effect of the Secession Ordinances under the true Theory 
of the National Existence. — The political Action of the Got- 
ernment in its several Eunctioxs, presented as it may hate 

INDICATED A VIRTUAL EeCOGNITION OF THAT EFFECT. 

In his first Message, July 4, 1861, President Lincoln 
said : — 

" It might seem at first thought to be of little difference whether 
the present movement at the South be called ' secession ' or ' rebel- 
lion.' The movers, however, well understand the difference. At 
the beginning, they knew that they could never raise their treason 
to any respectable magnitude by any name which implies violation 
of law. . . . They invented an ingenious sophism which, if con- 
ceded, was followed by perfectly logical steps, through all the inci- 
dents, to the complete destruction of the Union. The sophism 
itself is that any State may, consistently with the national Constitu- 
tion, and therefore lawfully and peacefully, withdraw from the Union 
without the consent of the Union or of any other State. . . . This 
sophism derives much, perhaps the whole, of its currency from the 
assumption that there is some omnipotent and sacred supremacy 
pertaining to a State, — to each State of our Federal Union. Our 
States have neither more nor less power than that reserved to them 
in the Union, by the Constitution, — no one of them ever having 
been a State out of the union ; . . . having never been States, either 
in substance or in name, outside of the Union. . . . The States have 
their status in the Union, and they have no other legal status. If 
they break from this, they can only do so against law and by revolu- 
tion. The Union, and not themselves separately, procured their 
independence and their liberty. By conquest or purchase, the Union 
gave each of them whatever of independence and liberty it has. 
The Union is older than any of the States, and, in fact, it created 
them as States. Originally some dependent 1 colonies made the 

1 Von Hoist, p. 6, note, has read the citation independent, and inserts after 
the word, in brackets : " [i. e., independent of one another]." 



THEORY OF OUR NATIONAL EXISTENCE. 143 

Mr. Lincoln's theory of the Union. 

Union, and in turn the Union threw off their old dependence for 
them, and made them States such as they are. Not one of them 
ever had a State Constitution independent of the Union." 1 

It would be somewhat difficult, to say the least, to 
gather from Mr. Lincoln's various public utterances any 
consistent statement of the nature of the Union. His 
language is not here cited as having any authority what- 
ever. These expressions, from the Message, are quoted 
only as they may indicate that Mr. Lincoln may per- 
haps have accepted, obscurely, indeed, and with many 
inconsistencies and much confusion of thought, that inves- 
titure of sovereignty which, in the last chapter, I have 
proposed as the only one consistent with the facts pre- 
sented in history. 

In his denial of the " assumption " upon which the 
" sophism " of a right of peaceable secession depended for 
its currency, Mr. Lincoln had before his mind the fetish 
idea of the Constitution, which is indicated by his saying 
that the States had only the reserved powers, — the powers 
reserved to them "by the Constitution," — and so denying 
that the States were the United States, and making the 
general government superior to the States in union. 

His assertion, in this instance, of a Union — the United 
States, existing, in the order of time, before there were 
States to be united — and which, as a pre-existent power, 
gave them their existence is, so stated, 2 a contradiction in 
terms. It is only another presentation of the' hypothetical 
nation or people, holding sovereignty by human nature, 
without any antecedents or any political organization, 3 

1 Congressional Globe Reports, 1st Sess., 37th Congress, Appendix, p. 3; 
Macpherson's Political History of the Eebellion, p. 127. The italicizing, &c, 
above given is as in these reports. 

2 In his Inaugural, he had said : "The Union is much older than the Con- 
stitution." Macpherson's Pol. Hist. 106. This is a very different proposition, 
and is that which gives the key to the problem. 

3 Compare ante, p. 114. In this Message, Mr. Lincoln says of the Consti- 



144 THE APPLICATION OF THE THEORY. 

Effect of Secession Ordinances. 

which becomes more prominent in some of his later public 
utterances. 

But still there is in these passages the recognition of the 
fundamental fact which is thus stated by Yon Hoist, vol. 
i., p. 6 : " Each individual colony became a State only in 
so far as it belonged to the United States, and in so far as 
its population constituted a part of the people." And it is 
in support of this historical statement that Von Hoist cites 
these words from Mr. Lincoln's Message. 1 

By continuing in union, the States hold sovereignty, and 
not otherwise ; because they never held it otherwise, Con- 
stitution or no Constitution. 

This possession of sovereignty as a unit by the States in 
union, and, as such, constituting a nation or a people 
which is known to exist politically only as there have 
been States in union, continued, as any possession of sov- 

tution adopted for the Confederate States : " They omit ' we the people,' and 
substitute ' we the deputies of the sovereign and independent States.' Why ? 
Why this deliberate pressing out of view of the rights of men and the au- 
thority of the people 1 " Macpherson Hist. p. 128. Mr. Lincoln probably 
referred to the " Constitution for the provisional government " (see A. H. 
Stephens's Hist, of the War, &c, ii. p. 714), which was superseded by that 
adopted March 11, 1861, ib. p. 722, and Appendix to Chase's Decisions, by 
B. T. Johnson, which reads : " We, the people of the Confederate States, 
each State acting in its sovereign and independent character." 

1 In this instance, Mr. Lincoln states a matter of historical fact without 
reference to the written Constitution as a law for the case. But in his In- 
augural, March, 4, 1861, the leading idea before his mind seems to be that of 
the Constitution acting by its own vigor, the fetish idea. He says : " I hold 
that, in contemplation of universal law and of the Constitution, the Union of 
these States is perpetual. Perpetuity is implied, if not expressed, in the 
fundamental law of all national governments. It is safe to assert that no 
government proper ever had a provision in its organic law for its own termi- 
nation. Continue to execute all the express provisions of our national Con- 
stitution, and the Union will endure for ever, it being impossible to destroy 
it, except by some action not provided for in the instrument itself." In this 
connection occurs a passage which has often been cited, judicially and 
otherwise : " It follows, from these views, that no State, upon its own mere 
motion, can lawfully get out of the Union ; that resolves and ordinances to that 
effect are legally void." 

See language very similar to this in Chase's opinion in Texas v. White, 
ante, pp. 11, 12. 



THEORY OF OUR NATIONAL EXISTENCE. 145 

State-Lapse; or, State-Suicide. 

ereignty continues until it may be interrupted by con- 
quest, or by revolution, or by abdication. 

States cannot be obliged to hold sovereignty, either 
singly or in union with other States. Nobody can be 
obliged to hold sovereignty. Obliged to be sovereign is a 
contradiction in terms. Sovereignty, by its nature, cannot 
be held under law. 

A State thus holding sovereignty in union with the other 
States may refuse to hold it so, in union. 

Massachusetts, or Texas, or New York, or South Caro- 
lina, being in union with the other States, was one of an 
aggregate of personalities holding sovereignty as a unit. 
Each one, or any one of them, was free to refuse to hold it 
so; that is, in union. A State could not be obliged by any 
law to hold it so, that is, in union, any more than it could 
be obliged to hold it in any other manner whatever. 

The eleven Southern States, that is, the severally organ- 
ized political people of those States, had, in union with the 
other States, as an aggregate of corporate personalities, 
held sovereignty as a unit. They refused to hold it so, in 
union with the other States, and were free to refuse, 
because, by the nature of things, they were not obliged to 
hold it at all. 

As such refusal, the ordinances of secession were not 
nullities. Nidi and void are terms applicable to transactions 
among persons holding powers under law. But the posses- 
sion of sovereign power is not wider law. These ordinances 
then were efficacious, in leaving sovereignty, an undimin- 
ished unit, exclusively in the States continuously holding it 
by the fact of their voluntarily continuing in union ; the terri- 
tory and population of the refusing States remaining under 
the same sovereignty as before, but thereupon vested only 
in the States continuing in the voluntarily existing union. 1 

1 Brownson Am. Rep. 290. " The State, under the American system, as 
distinguished from Territory, is not in the domain and population fixed to it ; 



146 THE APPLICATION OF THE THEORY. 

Conditions of State-Lapse. 

From the nature of the case, it being one where the sub- 
ject-matter is above the domain of law, there will always be 
the practical question, which States are the existing States 
in union and which are those who ceased to exist by refus- 
ing to be of the Union. The solution of this ma}* appear 
easier where there is on one side a large majority in number, 
correspondingly strong in population, territory, and other 
material elements of political power, and a minority on 
the other, correspondingly weak in these respects. But 
the case may be supposed that the States should be divid- 
ed into two nearly equal portions, each claiming to be 
the United States. The possibility of such a crisis must 
be incidental to any investiture of sovereignty in a body of 
co-ordinate personalities, being essentially an oligarchy, 
and the solution could only depend on force. But the 
possible occurrence of such a crisis is not excluded by sup- 
posing a constitution resting on the will of the nation as a 
mass of individuals. For then it becomes merely a ques- 
tion of the numerical majority, and this would be decisive 
only as superior force of either party might appear to 
prove it the majority. 

I have already cited Dr. Brownson's statement, ante, p. 
133, note 1, that a similar result must have ensued even in 
the inceptive period of the Union, in 1781, had four of the 
States " stood out and refused " to ratify the Constitution. 

nor yet in its exterior organization, but solely in the political powers, rights, 
and franchises which it holds from the United States, or as one of the United 
States. As these are rights, not obligations, the State may resign or abdi- 
cate them and cease to be a State, on the same principle that any man may 
abdicate or forego his rights. In doing so, the State breaks no oath of 
allegiance, fails to fulfil no obligation she contracted as a State. She simply 
foregoes her political rights and franchises. So far, then, secession is possible, 
feasible, and not unconstitutional or unlawful." The parallel here suggested 
conveys the erroneous idea that the States held sovereign powers, in union, 
under some law, as individual citizens hold rights and franchises. This is 
liable to mislead. The difference between abdication of sovereignty and the 
surrender of rights under law is in the fact that the political power abdicated 
immediately passes over to some one else. 



THEORY OF OUR NATIONAL EXISTENCE. 147 

Von Hoist's Comment on Brownson. 

Von Hoist, vol. i, p. 57, note, cites this from Brownson as 
" an interesting instance of the length to which American 
political doctrinarians of the period extending from the 
time of the Missouri Compromise to the outbreak of the 
civil war have gone." And his criticism is "The facts 
that the resolution of the convention made the Constitution 
binding only on those States that would ratif} r it, and that 
it never occurred to any one to look upon North Carolina 
and Rhode Island as territories until they should adopt the 
Constitution, are of no consequence to him. The proposi- 
tion seems to him a logical conclusion of his general theory 
of the relation of the States to the Union, and that is suf- 
ficient for him." The German author is however entirely 
out of the way in supposing such " logical conclusion " to 
have been stated during the period he mentions. None could 
be required before an attempt to establish one or more 
States as severally sovereign should have forced some con- 
clusion as it would have been forced at the close of the last 
century, if North Carolina or Rhode Island had set up in- 
dependent alien sovereigntj^, or proposed to revert to the 
relation of colonies of Great Britain. Von Hoist's own 
statement, as already cited in this chapter, should have 
enabled him to understand that, if it never occurred to any 
one at that time to treat those States as territories, neither 
at that time did anybody regard them as foreign coun- 
tries, nor did, at that time, the laws of alienage apply as 
between their citizens and those of the other States ; that 
is, in the interval between the action of the convention and 
the adoption by those States of the proposed constitution 
of government. 1 

At the outbreak of the movement, there was, of necessi- 
ty, a doubt how far the act of the State conventions and 
officials of the existing State governments should be ac- 

1 Not even in Tucker's argument in App., note B, § 13, of his Blaek- 
Btone, Vol. i. As to Judge Cooley's discovery, see ante, p. 132, note 2. 



148 THE APPLICATION OF THE THEOEY. 

Corporate Kesponsibility of a People. 

cepted as the act of the political people, in each of the 
eleven States. 1 This clonbt was exjjressed by Mr. Lincoln 
in his first Message. But under the aspect which the re- 
bellion assumed as it progressed, compelling, by its sheer 
magnitude, recognition as a territorial war even from the 
government as to which the persons engaged were deemed 
rebels, there could be no question but that all, without 
reference to majority or minority, were involved in any 
consequences which might affect the State as a political 
personality. This conclusion is based upon a principle 
which I assume, as a principle or as a fact, that political 
power can only belong to the political people of the State, 
as an integer. 2 The idea that the political franchises of 
the individual citizen are an inherent personal right is a 
fragment of the rubbish of the social-compact origin of 
government. The theory of a State — a loyal or well-dis- 
posed State of the Union — existing all the time of the 
civil war, because the written Constitution requires or pre- 
supposes the existence of such States, somewhere, in some 
supposed human beings, supposed to wish to be citizens of 

i See Brownson's Quarterly Eev. (1864) pp. 39, 40 ; Am. Eep. 312. For- 
eign nations, it will be remembered, took a position on the question of bel- 
ligerency which excluded any distinction between the State, as a political 
person, and the inhabitants, as citizens of the United States ; because they 
recognized the State governments as having capacity to wage war. Ante, 
p. 56. 

2 In State of Georgia v. Stanton, 6 Wall. 65, it was said in the argument 
of the counsel for the State, — "A republican State, in every political, legal, 
constitutional, and juridical sense, as well under the law of nations as the laws 
and usages of the mother country [compare the historical statement, ante, 
pp. 123-1*25], is composed of those persons who, according to its existing 
constitution and fundamental law, are- the constituent body. All other per- 
sons within its territory or severally belonging to its people, as a human so- 
ciety, are subject to its laws and may justly claim its protection. But they 
are not, in contemplation of law, any portion of the body-politic known and 
recognized as the State. On principle, it must be quite clear that the body- 
politic is composed of those who by the fundamental law are the source of 
all political power or official or governmental authority." Citing Luther v. 
Borden as illustrating this. 






THEORY OF OUR NATIONAL EXISTENCE. 149 

Corporate Responsibility of the People of a State. 

a State of the United States, and to be loyal towards the 
government of the United States, in feeling, action being 
impossible, would seem too absurd for sober statement, if 
it had not actually been presented in various shapes in 
political declarations and forensic discussion. 1 

The reconstruction policy of Congress was, by some, 
supported on the idea of finding the proper subject for re- 
ceiving the benefit of the constitutional guarantee to a 
State of a republican government in such citizens or single 
citizen as might be supposed not to have forfeited his per- 
sonal sovereign rights by rebellion. 2 

A doubt as to the position actually taken by the political 
people of the State, as an integer, was most apparent in 
the case of Tennessee ; where the eastern portion was 
mainly occupied by those who were opposed to the at- 
tempted secession. But, in Keith v. Clark, this is not 

1 Brownson Am! Rep. 341. "The theory on which the government at- 
tempted to reorganize the disorganized States rested on two false assump- 
tions : first, that the people are personally sovereign ; and second, that all 
the power of the Union vests in the general government. The first, as we 
have seen, is the principle of so-called 'squatter sovereignty' embodied in 
the famous Kansas-Nebraska Bill, which gave birth, in opposition, to the 
Republican party of 1850. The people are sovereign only as the State, and 
the State is inseparable from the domain. The Unionists without the State 
government, without any State organization, could not hold the domain, 
which, when the State organization is gone, escheats to the United States, 
that is to say, ceases to exist. The American democracy is territorial, not 
personal." 

2 Whatever may have been Mr. Lincoln's plan for restoring " the States 
in rebellion to their proper practical relations to the Union " (ante, p. 37), he 
also supposed the existence of an " element " in those States loyal enough 
to accept the guarantee. See Message of Dec. 8, 1863, ante,,-p. 36. 

Mr. Justice Harlan, in Keith v. Clark, 7 Otto, 481, says of " the usurping 
State government," — " which government, at that time, was regarded by 
the mass of the people of Tennessee as established upon a firm and enduring 
foundation." Yet on the next page of the report he says, — " When there- 
fore the people of Tennessee who recognized the authority of the United 
States assembled by their delegates in Convention in January, 1865." It 
may then be inferred that this latter "people of Tennessee who," &c, were 
not " the mass of the people of Tennessee," &c. See also extracts from the 
Bame opinion, ante, pp. 28, 29. 



150 PRACTICAL RECOGNITION OF THE THEORY. 

Nature of the Demonstration. 

mentioned at all, in any opinion, as an exceptional element 
in the case, and the general intention of each Justice seems 
to be to present an argument equally applicable to any 
other of the eleven States. 

In the first and second chapters of this essay, I have 
marshalled the leading statements made, as to the status of 
the eleven States, by those who have had the best right to 
speak in the name of the sovereign, whoever that sovereign 
may have been, who prevailed in the civil war as against a 
rebellion. 

But, as may appear from the conclusion of the second 
chapter, I despair of framing on those statements a con- 
sistent political theory, correspondent to the facts as a 
law is correspondent to legal rights and obligations. 

Yet as the question relates to matter of political fact and 
not to matter of law, the action of which those statements 
are the record may indicate some theory, beyond the do- 
main of law, adequate to the support of such political 
action, which will or must be now accepted as fact, what- 
ever may have been the language used. 

The political effect here attributed to the transaction 
expressed by the State ordinances of secession, accompanied 
by resistance to the authority of the general government, 
follows logically from that actual possession of sovereign 
power under which the written Constitution became public 
law. But I do not here speak of something to be accepted, 
as the solution of the political and legal problems which 
have arisen from that transaction, merely because it is such 
a logical conclusion. I speak of something which, having 
taken place, has, in reality and in spite of disguises, been 
accepted as a political fact by the government and people of 
the United States ; and I say that, from this stand-point, 
the action of the government in suppressing the rebellion 
and in the reconstruction methods can be justified as consti- 
tutional, that is, as correspondent to pre-existing political 






THEORY OF OUR NATIONAL EXISTENCE. 151 

A Transfer of Sovereignty. 

conditions ; while, from any other, it is justifiable only 
as successful usurpation is justified by success. To demon- 
strate this according to the conditions under which the 
political question is now presented, 1 I propose to show how 
cases at law, as they have actually been decided, like those 
cited in Chapters I. and II., can be reconciled with this 
doctrine ; and how the same doctrine may justify, more 
intelligibly and consistently than can be done on any other 
basis, the action of the government in reference to belliger- 
ency and treason ; and, finally, how it may appear to have 
been applied, substantially, in the political action of the 
government, by its several departments, in reference to 
reconstruction. 

At the moment of the change of persons holding the 
sovereignty over such territory and population which, 
according to this view, had occurred, the local institutions 
and established organs of government continued, as legal 
institutions, by the general principle of the continuation 
of laws, but then and thereafter derived their validity from 
a different political authority, that is, from the sovereignty 
then vested exclusively in the United States, that is, the 
other States continuing voluntarily in Union ; a political 
authority sustaining and producing legal relations, rights, 
and duties, so far as they might be relations, rights, and 
duties not antagonistic to that sovereign right. 2 

1 Brownson, Am. Rep. 310. " It is in some measure characteristic of the 
American government to understand how things ought to be done only when 
they are done and it is too late to do them in the right way. Its wisdom 
comes after action, as if engaged in a series of experiments." 

2 Brownson, Am. Rep. 306. " Another reason why the doctrine that 
State secession is State suicide has appeared so offensive to many is the sup- 
position entertained at one time by some of its friends, that the dissolution 
of the State vacates all rights and franchises held under it. But this is a 
mistake. The principle is well known, and recognized by the jurisprudence 
of all civilized nations, that in the transfer of a territory from one territorial 
sovereign to another, the laws in force under the old sovereign remain in 
force after the change till abrogated of others are enacted in their place by 
the new sovereign, except such as are necessarily abrogated by the change 



152 PRACTICAL RECOGNITION OF THE THEORY. 

Continuation of Sovereignty in the United States. 

The legal effect which took place in this instance was 
such as occurs whenever territory and population pass from 
one sovereign to another, as either by conquest or cession 
under treaty arrangements made between nations without 
reference to the choice of the inhabitants of such territories. 
The laws, that is the municipal law, distinguished either 
as public or private, of the ceded or conquered territory 
remain in force, though they derive their actual authority 
from a different political personality. In the instance of 
these States, the local government was still, as to its formal 
organization, like that of any one of the United States, 
but, in its essential legitimacy, it was the government of an 
/( organized Territory of the United States. 

The consequence here ascribed to the action of the 
political people of a State in this rebellion may be con- 
ceived of as possibly occurring without any accompanying 
acts of resistance to the government of the United States, 
as organized at the time. The case might be supposed, 
that the political people of a State should, merely by their 
wow-action in political relations, cease to participate as a 
State in the general or national exercise of power. 

In the present instance, however, while the political 
people of each of these States ceased to share sovereignty 
as one of the United States, the individual persons who 
had constituted that people, supported by the rest of the 
local community, controlled all local organization by revolu- 
tionary force, and, through their acting officials, made it 
their instrument for separating the territory and population 
from the actual sovereign, that is, from the other States 
which then, exclusively, constituted the United States. 

itself of the sovereign, not, indeed, because the old sovereign retains any 
authority, but because such is presumed by the courts to be the will of the 
new sovereign. The principle applies in the case of the death of a State in 
the Union. The laws of the State are territorial till abrogated by competent 
authority, remain the lex loci, and are in full force. All that would be 
vacated would be the public rights of the State, and in no case the private 
rights of citizens, corporations, or laws affecting them." 



THEORY OF OUR NATIONAL EXISTENCE. 153 

Of Governments, as Usurping or Illegal. 

The individual persons who did this, that is, the officials 
and all who, as electors, supported them as a government, 
therefore usurped government, and, in so doing, committed 
treason, or what would be treason in any other country in 
the world ; independently of bringing themselves within 
the constitutional definition of treason, by " levying war " 
against the United States, " adhering to their enemies, 
giving them aid and comfort." 

But the terms " usurping governments," " illegal gov- 
ernments," are misleading terms as used in this connection. 1 
If the term government is used to designate the persons 
who, as State officials, administered the government of 
these States, they, as usurpers of political power, consti- 
tuted a "usurping government." As they individually 
and personally may have been sworn to support the Consti- 
tution of the United States, they committed perjury, and, 
whether so sworn or not, treason also, within the Constitu- 
tional definition. But the State government, in the concrete, 
is not under any law but that which emanates from the 
political people of the State whose instrument it is. If 
they sustain it with their votes, it is absurd to say that 
their government has been usurped. It is this political 
people who are the party taking the consequences of their 
own political choice. Government, as act, cannot be usurp- 
ing or illegal. It is neither legal nor illegal. Illegal gov- 
ernment is contradiction. So far as it is government it is 
not illegal action, and so far as it is illegal action it is not 
government. 

The usurpation which actually occurred was therefore 
not of the government of a State of the United States, nor/, 
usurpation as against a loyal people of a State. It was 
the usurpation of that government, as over the Territories 
of the United States, which is vested in Congress. The 
legitimate authority of Congress, as representing the United 

1 Compare the citations from opinions in Keith v. Clark, ante, pp. 28-33. 



154 CONTINUATION OF LEGAL RELATIONS. 

Doctrine of Legal Relations under State-lapse. 

(other) States, over such territory and its population was, 
for the time, obstructed by domestic insurrection, rebellion, 
and civil war, as might be that of any sovereign, under 
any form of government. 1 

The relations of ordinary civil or social life continued, 
and new rights and obligations continued to arise ; 2 as 
would have been the case under whatsoever persons might 
there actually exercise power; who would either be sus- 
tained as a new sovereign (by successful revolution ; in 
which case there would have been an end of our ques- 
tions), or be regarded as locum tenens for the actual pos- 
sessor of sovereignty, that is, the people of the (other) 
States united. All would have been valid that could have 
been valid, had the rebellion occurred in an organized ter- 
ritory never having been received as a State. 

The question of legal rights and obligations, in transac- 
tions occurring under the continuance of this usurpation, 
would thereafter arise for judicial determination, after the 
re-establishment of the national authority ; as in the case 
Keith v. Clark, and other cases cited in the first chapter. 

Admitting the propriety of speaking of the State gov- 
ernments as usurping governments, whether according to 
the view stated in the dissenting opinions in Keith v. 

1 Brownson, Am. Rep. 307 (immediately following the passage last cited). 
" But the same conclusion is reached in another way. In the lapse of a State, 
or its return to the condition of a Territory, there is really no change of sover- 
eignty. The sovereignty, both before and after, is in the United States. 
The sovereign authority that governs in the State government, though inde- 
pendent of the general government, is the United States. The United 
States govern certain matters through a general government, and others 
through particular State governments. The private rights and interests 
created, regulated, or protected by the particular State are created, regulated, 
or protected by the United States, as much and as plenarily as if done by 
the General Government, and the State laws creating, regulating, or protect- 
ing them can be abrogated by no power known to the Constitution, but 
either the State itself or the United States in convention legally assembled." 

2 Williams v. Bruffy, 6 Otto, 192. Horn v. Lockhart, 17 Wall. 570. As 
to continuation of the State laws in Georgia, after appointment of a military 
governor, see Ketchum v. Buckly, 9 Otto, 188. 



THEORY OF OUR NATIONAL EXISTENCE. 155 

Bearing of Opinions in Keith v. Clark. 

Clark, or that which has been presented in this chapter, 
still it seems that a general presumption in favor of the 
validity of all acts of any de facto government should ap- 
ply, so far as to throw on the party denying the claim the 
obligation of alleging and offering some prima facie evi- 
dence that the transaction whose validity was contested 
had been in aid of the rebellion. So that the view taken 
in the opinion of the court on this point l may be sustained, 
independently of its political doctrine as to the nature of 
the Union, or even accepting any which may have been 
preferred by any of the dissenting members. 

In the opinion delivered by Mr. Justice Miller, for the 
court, in Keith v. Clark, the State of Tennessee is placed 
on the same plane with nations in general, such as Vattel, 
Wheaton, and others regard as subjects of rights and duties 
under international law. 2 It may appear from other testi- 
mony adduced in the first and second chapters, that, so far 
as the use of words and phrases indicates the nature of the 
acts which they accompany or which they are intended to 
describe, a similar belief in the position of the States of the 
confederacy had been more or less clearly accepted by all 
branches of the government, and probably also by a vast 
majority of its supporters. 

But however iniquitous, on the part of either belligerent, 
an international war may be by reason of the political in- 
tentions of such belligerent, there can be no resulting al- 
teration in the validity of relations existing between the 
private citizens who owe political allegiance to such bellig- 
erent. There can be no original illegality, from the nature 
of the consideration, in contracts made by the government * 
of such belligerent with its own citizens in supporting its 
cause against the other belligerent party. Nor can defeat 
have the effect of making such contracts * illegal. We 

1 7 Otto, 466, ante, p. 27. 

2 Ante, p. 24; 7 Otto, 459, 460. 



156 CONTINUATION OF LEGAL RELATIONS. 

Presumption in favor of a Local Government. 

might, indeed, conceive of a treaty stipulation to which 
the victor, at the end of a war, had compelled the defeated 
nation to agree, binding the latter to repudiate all obliga- 
tions to its own citizens incurred under such a contract, or to 
annul all contracts between its citizens made with the view 
of resisting the victor as a public enemy, while the war 
was still pending. But it would certainly be for the party 
relying, in a suit at law, on the effect of this arrange- 
ment, to plead it and to adduce proof to bring within its 
terms any contract which might be the subject of such 
suit. In other words, the presumption would be in favor 
of the legality of any relation admitted to have had sanc- 
tion in the authority of the defeated nation. 

If then the eleven States are regarded as conquered na- 
tions, it would seem that no court of law can admit a pre- 
sumption against the validity of any relation, as legal, 
which may be attributed to the authority of one of the 
compromised States ; or that, in other words, the presump- 
tion must be taken to be in favor of its validity ; as was 
affirmed by the majority in Keith v. Clark, and had been 
by the court generally, in earlier cases. 1 

More clearly this would be the case if the legal relation 
in question arose from the exercise of one of the " reserved 
powers," such as the power to establish a bank, and not 
from a power not exercised by the States severally, but by 
the general government, and usurped during the rebellion, 
according to Mr. Justice Bradley's view. Ante, p. 31. 

But these arguments, which agree in sustaining rights 
and obligations derived from the local authority of any one 
of the eleven States, would not accord also in their applica- 
tion to such as could only be attributed to the legislative 
action of the Confederate government. According to the 
view here taken of the effect of the secession ordinances, 
this so-called government, which professed to exist only as 

1 Ante, p. 7. 



THEORY OP OUR NATIONAL EXISTENCE. 157 

Presumption against the Confederate Government. 

the eleven States might be in existence, came into being 
only after these States had lapsed into the Territorial con- 
dition in relation to the government of the United States. 
It was therefore, under any aspect, legal or political, an 
insurrectionary government and de facto belligerent, and 
should have been accepted as such by all the world, and 
as having no claim to political recognition except such as 
might be derived from a subsequent revolutionary success. 
Many acts done under its actual force must now be accept- 
ed as beyond the pale of legal remedy, having been settled 
by the vis major, independently of the legal consequences 
to parties never within its temporary jurisdiction, arising 
from its temporary belligerency. 1 So that this view would 
be in harmony with the decisions of the Supreme Court on 
this point ; whether those decisions deny any possible val- 
idity to claims founded on such authority, or are mereky to 
the effect that any claim founded on its legislative action 
must be pleaded under a presumption against its legal 
validity. 2 

But this limitation can be logically sustained only on 
'the idea of State-lapse or State-suicide. 

For if the view taken in the opinion of the court by Mr. 
Justice Miller, in Keith v. Clark, which recognizes the 
States of the Confederacy as so many nations in alliance, 
is to be accepted, the Confederate government could only 
be regarded as their agent, asserting power and claiming 
obedience as the representative of each of such States. 

The provision in the Constitution forbidding " any State 



1 As in cases of insurance of vessels destroyed by confederate cruisers. 
See Mauran v. Ins. Co., 6 Wall. 1 ; Opinion of the majority of the Court de- 
livered by Nelson, J. : Chase, Ch. J., and Swayne, J., dissenting. It may be 
surmised that a difference of view as to the nature of a State of the Union 
was at the root of the want of agreement in these cases, as in many others 
before the Supreme Court. 

2 Compare ante, p. 7, and notes ; and the opinions in Ford v. Surget, 7 
Otto, 594, noticed ante, p. 61, n. 2. 



158 CONTINUATION OF LEGAL EELATIONS. 

Operation of the Argument from Public Policy. 

from entering into any agreement or compact with another 
State " must indeed be taken to have imposed an obligation 
upon these States as political persons, if they continued to 
exist as such. But here the question is of political ca- 
pacity, not of legal right. The provision itself is a recogni- 
tion of the capacity. If the case is to be regarded as 
analogous to the breach of a treaty agreement between in- 
dependent nations, it is difficult to see how private indi- 
viduals, whose rights of person or of property may have 
been affected by a State's violation of this obligation, 
should be held responsible. 

It might be suggested that in refusing to recognize 
claims founded on the legislative authority of such " rebel 
governments," or " unlawful governments," or " usurping 
governments," the judiciary may possibly be benefiting one 
rebel at the expense of another. It is probably argued 
that this judicial refusal to recognize the validhVy" of the 
contract is founded on motives of public policy, 1 to serve 
as a warning for the future against rebellion, as contracts 
on an immoral consideration are held void, where each 
party has been in pari delicto. The analogy, however,' 
is not complete. In the case of suit for articles of mer- 
chandise used in aid of the rebellion, 2 a refusal to enforce 
the contract might benefit a traitor at the expense of an 
innocent party. If the individuals who respectively made 
the population of the States of Texas and Tennessee at the 
dates of the reconstruction of those States, were, in each 
case, as a mass of persons, the same as those who supported 
the rebellion, then the recovery on the bonds sold for the 
State of Texas/inured, as the repudiation of the notes of 
the Bank of Tennessee would have inured, to the benefit 

1 See opinion of the court by Miller, J. , and separate opinions by Clifford 
and Davis, JJ., in Sprott v. United States, 20 Wall. 461. 

2 See cases like Hanauer v. Doane, 12 Wall. 345 ; Hanauer v. Woodruff, 
15 Wall. 439. 



THEORY OF OUR, NATIONAL EXISTENCE. 159 

* Of Claims accruing to the United States. 

of so many rebels or traitors, though the bonds in one case 
and the notes in the other might have passed into the 
hands of parties always loyal in feeling to the United 
States. The reasoning which distinguishes two different 
moral beings, in the single political personality whose 
rights and obligations are in question, savors of the subtle- 
ties of the schoolmen of the middle ages. 1 

As the legal rights and obligations of private persons 
would not cease to subsist, when this change of sovereignty 
by State-lapse or State-suicide occurred, so rights and 
obligations would also continue in relations to which the 
State itself had been a party. The political person who 
took the place of the State and who, in that case, would 
have been the United States represented by the general 
government, would have succeeded to any rights and obli- 
gations which such State could have claimed or owed. 
The difference would be in the forum in which such rights 
and obligations should be maintained or enforced. Thus, 
under the circumstances on which the case of Texas v. 
White was founded, the United States should have taken 
the plaintiff's place. There would have been no State of 
Texas to appear by original bill, but the United States 
could have proceeded in the subordinate courts, subject to 
the appellate jurisdiction of the Supreme Court. 2 

A decision on the merits in a case of this sort would 
seem to turn on the inquiry whether the transfer of prop- 
erty really belonging, at the time, to the United States 
as successor to the lapsed State, could convey a valid title ; 
and this would appear to depend, not simply upon the 
question whether this usurping government of a Territory, 
which it would be, could sell such property ; nor yet upon 

1 See Mr. Justice Grier on the plea of "insanity," ante, p. 17; and Mr. 
Justice Miller on " logical legerdemain," p. 24. The argument for denying 
the moral identity of the communities whose rights and obligations were in 
question might be called the converted-sinner argument. 

2 Const. Art. iii., sec. 2. 



160 BEAKING OF DECIDED CASES. 

Irrelevancy of White v. Hart. 

the application of the proceeds ; but, whether the pur- 
chaser took the property, not in the ordinary course of 
trade in such securities, but with the intention to defraud 
the real owner, the United States. 1 

The question which was presented in White v. Hart, 
ante, p. 19, had, on the merits, no necessary connection 
with the rebellion. It might have arisen by the introduc- 
tion of a clause, such as that on which the case depended, 
into the constitution of any State in which slavery had just 
ceased to exist. Or the same question might equally have 
arisen in the case of a Territory in which slavery had ex- 
isted until admitted as a State under a constitution con- 
taining a similar clause. The question then would have 
been the same under the theory here presented ; which sup- 
poses Georgia, before readmission under the Constitution 
of 1868, to have been, in reality, only a Territory of the 
United States. The decision actually arrived at by the ma- 
jority of the court might have been the same under this view. 

Strictly speaking, therefore, there was no need to dis- 
cuss the question presented by the allegations in the pleas 
which related to the political validity of those transactions 
which had led to the adoption of the clause in the State 
Constitution, and which are known as Reconstruction, and 
which the court accepted, either for law or fact, on the 
authority of the " political department." 

The questions which are here considered as they might 
have presented themselves under that doctrine of State- 
lapse or State-suicide which is here propounded, arose in 
those cases before the Supreme Court which were cited to- 
gether in the first chapter as bearing directly on the ques- 
tion of the continuance or non-continuance of political 
existence in the case of the eleven States compromised by 

1 The result of this view would seem to agree with the actual judgment 
in Texas v. White, ante p. 15, and with the language of Waite, Ch. J., in 
Huntington v. Texas, 16 Wall. 413. 



THEORY OF OUR NATIONAL EXISTENCE. 161 

Belligerency and Treason ; how Considered. 

the rebellion. Other cases, before the same court, involv- 
ing questions on belligerency and treason were cited in 
the second chapter, as also necessarily considered in review- 
ing judicial opinion on the same question of the status of 
those States. 

It is then proper to consider here how questions of these 
two classes would present themselves under this doctrine 
of State-lapse or State-suicide, as here advanced. 

As, according to the view here taken of the political 
effect of secession ordinances followed by war, there was 
no longer any possession of sovereignty by the political 
people of these eleven States, there were none who, in 
these actual Territories, could be recognized as belligerent 
in virtue of political capacity to engage in war. 1 

Any recognition of those States as the belligerent party 
involves the attribution of sovereignty to each of those 
States severally. 2 Those therefore who, at that time, ad- 
ministered the executive, legislative, or judicial functions 
of the government of the United States could not, consis- 
tently with the attitude of that government towards the 
rebellion, make such a recognition ; nor could they by any 
such recognition as they may have made during the war, 
bind the United States, that is, the other States in union 
— the actual sovereign ; though, in the case that the Con- 
federacy had been successful in establishing the separate 

1 If it be conceded that the eleven States continued to exist as States, 
political personalities, an argument for recognizing their belligerent capacity 
might be drawn from the very clause in the Constitution which declares that : 
" No State shall, without the consent of Congress, . . . keep troops or ships 
of war in time of peace, ... or engage in war, unless actually invaded or 
in such imminent danger as will not admit of delay." Art. i., sec. 10, 2. 
The capacity of each State to appear before the world as a belligerent power 
is here indicated by the prohibition against its use in certain cases. Com- 
pare the comment on this clause in Von Hoist, i. 259, 260, in connection with 
the action of Massachusetts in 1814. 

2 Mr. B. T. Johnson, in his preface to Chase's Decisions, argues for this 
as the consequence of the actual recognition of a state of belligerency. See 
ante, p. 52. 



162 CONSIDERATIONS ON BELLIGERENCY. 

Distinctions in recognizing Belligerency. 

existence of its members, that fact could have been 
accepted by the government of the United States, as any 
political fact is accepted by all the world. 

But belligerency can be recognized in an actually exist- 
ing military force, independently of recognition of any 
political personality as one whose right of dominion in- 
volves capacity to send its subjects or citizens into the field, 
with the rights and duties defined by international usage. 
Belligerency has been repeatedly recognized in civil wars, 
among all civilized nations. A certain amount of power 
to maintain the field, as against a government already ex- 
isting, requires recognition as a belligerent force. This is 
a recognized principle of the modern jus gentium and jus 
inter gentes. 1 

The recognition of belligerency in the southern military 
forces under the command of General Lee or of General 
Jefferson Davis, as actual commander-in-chief, whether 
made by the President of the United States, as commander- 
in-chief on the part of the government, or by the generals 
in the field, or by Congress, did not involve recognition 
of the eleven States as still holders of sovereignty, under 
any theory, either as in severalty or in union, as States of 
the United States. 2 

1 Phillimore, Int. Law, ii. p. 143. Compare Wheaton, Int. Law, Dana's 
ed. p. 34 ; Lawrence's ed. p. 39, and the notes of the American editors. 

It is said, in the opinion for the court by Mr. Justice Field in Williams 
v. Bruffy, 6 Otto, 176, 186, 187 : " When a rebellion becomes organized and 
attains such proportions as to be able to put a formidable military force in 
the field, it is usual for the established government to concede to it some 
belligerent rights, . . . but ... to what extent they shall be accorded to 
insurgents depends upon the considerations of justice, humanity, and policy 
controlling the government." The idea conveyed by the last clause may be 
questionable. It does not appear how belligerency, or the sum of the powers 
which distinguish a belligerent power, can be described as more or less; and 
in case of civil war it is extorted from the party claiming political supremacy 
by the power which the other party has to retaliate. The distinction which 
should have been judicially made was in respect to the personality recognized, 
whether States belligerent de jure, or a body of insurgents belligerent de 
facto. 

2 Compare the full discussion of two views on this point in the opinions 



THEORY OF OUR NATIONAL EXISTENCE. 163 

Recognition of Belligerency in the Prize Cases. 

The distinction here presented may seem, at first sight, 
an unpractical refinement, — a distinction without a 
difference. 1 It was undeniable that the persons who, in 
their official capacity, constituted the local governments, 
whether usurped or not, 2 were those who, through the 
confederacy, carried on the war. The war was carried on, 
on the part of the population in rebellion, by means of the 
pre-existing State organizations. 3 

Or it may now be more correct to say that such did, at 
the time, appear to be an unpractical refinement, and that, 
afterwards, some who had apparently so considered it may 
have inclined to recognize the importance of having neg- 
lected to observe this distinction. 

Several passages from the opinions delivered in the 
Supreme Court in the Prize Cases, 2 Black, 660, have 
already been cited, ante, pp. 49, 50, as indicating a recog- 
nition, by the court, of the eleven States as the belligerent 
party. ^ 

In Williams v. Bruffy, 6 Otto, 187 (October, 1877), 

of Justices Harlan and Clifford, agreeing on the same decision of the case 
before the court, in Ford v. Surget, 7 Otto, 594. 

How different the color which ma}' be given by slight differences of speech, 
even by persons maintaining similar conclusions, may appear by a com- 
parison of Mr. O'Conor's argument, in the case of Mr. Davis, with that of 
Mr. W. Green, in Keppel's Admr. v. The R. R., both fully given in Mr. B. 
T. Johnson's Chase's Decisions. Mr. O'Conor's argument (pp. 115, 116) 
appears to be limited to a recognition of belligerency only to the extent it 
might be made in case of revolutionary war in a country under an integral, 
undistributed, or consolidated government, without any State organizations 
like our own ; while in that of Mr. Green (pp. 175, 183), the intention to 
present the Stales as the personality recognized is obvious. 

1 Or what some would call a " profitless abstraction " or a "pernicious 
abstraction." Compare ante, p. 43 [</], and post, the beginning of Chapter 
VII. 

2 See ante, p. 153. 

3 It was this existing political machinery which caused the war to have, 
ab initio, its territorial character, independently of the question of the political 
existence of the States. But that this territorial character did not depend 
upon the political existence of the States was shown by the instances of 
Western Virginia and Eastern Tennessee. 



164 DISTINCTIONS IN BELLIGERENCY. 

The Supreme Court, in the Prize Cases. 

it was said by Mr. Justice Field, in reference to those 
cases : — 

" It was there simply held that when parties in rebellion had 
occupied and held in a hostile manner a portion of the territory of 
a country, declared their independence, cast off their allegiance, 
organized armies, and commenced hostilities against the govern- 
ment of the United States, war existed ; that the President was 
bound to recognize the fact and meet it, without waiting for the 
action of Congress ; that it was for him to determine what degree 
of force the crisis demanded, and whether the hostile forces were of 
such a character as to require him to accord to them the character of 
belligerents, and that he had a right to institute a blockade of ports 
in their possession which neutrals were bound to recognize." 

The term " parties in rebellion " is not one of very pre- 
cise meaning in such a connection. It may be questioned 
whether it is any better suited to the case of natural per- 
sons in rebellion than to that of political personalities in 
rebellion. But the doubt, here, is whether it is not rather 
too vague a term to be adequate to describe the bearing of 
the decision of the court in the Prize Cases. 

That decision was also referred to in Ford v. Surget, 
6 Otto, 176, in the opinion of the court delivered by Chief 
Justice Waite, in which it is said : — 

" Without attempting to state all the reasons assigned in the 
adjudged cases for the conclusions herein announced, we assume 
that the following propositions are settled by or plainly to be de- 
duced from our former decisions. 

" 1. The district of country declared by the constituted author- 
ities, during the late civil war, to be in insurrection against the 
government of the United States was enemy territory, and all peo- 
ple residing in such district were, according to public law and for 
the purposes connected with the prosecution of the war, liable to 
be treated by the United States, pending the war, and while they 
remained within the lines of the insurrection, as enemies, without 
reference to their personal sentiments." 

Whether these two statements of the position previously 



THEORY OF OUR NATIONAL EXISTENCE. 165 

Statements of the Bearing of the Prize Cases. 

taken by the court are or are not sufficiently definite in 
terms, it may perhaps be said with truth that they are 
clear enough to indicate all that the court was competent 
to recognize, in the circumstances, and therefore all that it 
ought to have recognized. But whether this is an accurate 
description of the view of the facts taken by the court, 
during the war, is a matter on which there may always be 
some difference of opinion. 1 

The cases which, together, were reported as the Prize 
Cases, were of four vessels seized at different times and 
places. These were the Amy Warwick, the Crenshaw, 
the Hiawatha, and the Brillante. 

The Hiawatha and the Brillante were vessels owned 
abroad, and in their cases, the question was as to the rights 
of blockade, as against all the world, and not merely as 
against citizens of the eleven States. But the belligerency 

1 Compare the separate opinion delivered by Mr. Justice Clifford in Ford 
v. Surget. 

In connection with these opinions on the question of belligerency may 
properly be cited note 32 of Mr. Dana's edition of Wheaton's Int. Law, 
part i., § 56, entitled The United Slates a Supreme Government, which compre- 
hends a clear statement on several very important points relating to the civil 
war. In the course of this, p. 83, it is said : " The States in rebellion organ- 
ized a central government," &c. In the sequel, the action of the Confederate 
government in the war is alone spoken of. It is further said : " The United 
States did not, of course, declare war ; for there was no body -politic against 
which to declare it, the very existence of the Confederate Government being 
treason; and the separate States could not be regarded as capable of performing 
any function in hostility to the United States. The state of things was treated 
as a rebellion of individuals, risen to the dimensions of a war. It was met 
by the exercise of the powers of war on the part of the United States, prac- 
tically, and for the purpose of suppressing the insurrection. The govern- 
ment did, in practice, treat the rebels as belligerents while the war lasted, 
holding them as prisoners of war, making use of exchanges and other prac- 
tices of war. This was from necessity, to prevent retaliation, and from 
humanity. No general status of belligerency was conceded to them by law, 
but the legal status of each person engaged in the rebellion was that of a 
•criminal under the municipal law." 

This statement appears to me to be, like those in the two cases last cited, 
— wisdom after the fact. But wisdom after the fact, though it may be the 
most reliable wisdom, is not always history. 



166 THE DISTINCTION IN BELLIGEKENCY. 

Case of the Amy Warwick. 

necessary to the assertion of the rights of blockade, and 
maritime search for and capture of contraband of war, had 
nothing to do with the question of the political relation be- 
tween the government of the United States and the popu- 
lations of those eleven States. The case would have been 
the same had the rebellion occurred under a consolidated 
or unitary form of government, without any appearance of 
a federative constitution, and, in relation to these rights of 
our government, the case, as to the rest of the world, was 
the same whether the antagonist belligerent was a political 
State or nation, belligerent de jure, or only an insurrection- 
ary force, belligerent de facto. The political question of 
the status of the States could remain in abeyance during 
the recognition of such belligerency. 1 

The Amy Warwick was a vessel owned by citizens and 
permanent residents of Richmond, Virginia, with a cargo 
of coffee, belonging in part to such citizens, which had 
been captured Aug. 10, 1861, on a return voyage from Rio 
Janeiro, on the high seas by a vessel of war of the United 
States. The vessel and cargo had been libelled as prize of 
war by the captors in the District Court of the United 
States for the District of Massachusetts, before Judge 
Sprague, and a decree of condemnation, as prize, entered. 

In the opinions delivered by Judge Sprague on this case, 
this decision is placed on precisely the same principles as 
those applying to captures in war between independent 
nations ; and, as I understand his expressions, the judge 
was careful to recognize the State of Virginia as the bel- 
ligerent, in stating the foundation of his argument. 2 

1 It is only to the case of such belligerency that the authorities apply 
■which were cited by the court, 2 Sprague, 133, and by counsel for the libel- 
ants, 2 Sprague, 125, 2 Black, 654, to sustain the proposition that "in 
internal wars it is competent for the sovereign to exercise belligerent powers 
generally." Compare Nelson's opinion, ib. 696. 

2 In a note relating to this case, in Mr. Lawrence's Wheaton's Int. Law, 
p. 536, the editor says : " The distinction was made between citizens of a loyal 



THEORY OF OUR NATIONAL EXISTENCE. 167 

Judge Sprague's Recognition of the Belligerent. 

On page 136 of 2 Sprague's Decisions, Judge Sprague 
said, — 

" In cases which may come within the definition of civil war, 
there may be only an assemblage of individuals in military array, 
without political organization or territorial limit ; or armed bands 
may make hostile incursions into a loyal State, or hold divided, con- 
tested, or precarious possession of portions of it, as now in Mis- 
souri and Kentucky. In such cases, local residence may not create 
any presumption of hostility. Far otherwise is it in Virginia." 

After reciting the action of the State Convention, in 
adopting the ordinance of secession and forming a con- 
federacy with other Southern States, Judge Sprague said 
further, — 

" All this was, indeed, subject to be disaffirmed by a vote of the 
whole people of the State, to be taken on the twenty-third day of 
May : but no part of it has been disaffirmed ; on the contrary, the 
popular vote on that day, apparently by a large majority, ratified 

State like Kentucky or Missouri, where armed bands may make hostile in- 
cursions and hold divided, contested, or precarious possession of portions of 
it, in which case local residence may not create any presumption of hostility, 
and such a State as Virginia, which, by the act of the established govern- 
ment, approved by a majority of its citizens, has placed itself in war with 
the Federal government. The State sovereignty was our enemy, and every 
thing that could afford aid and comfort to the enemy was contraband of war, 
whatever the private opinions of its owner. The claimant was identified 
with the State of Virginia as a subject of that State, living in its jurisdic- 
tion, and for various reasons his claim to the property in question was inad- 
missible and the said property must therefore be condemned." 

In Mr. Dana's Wheaton's Int. Law, p. 375, note 153, Belligerent Powers 
exercised in Civil War, in an analysis of this " elaborate and thoroughly 
reasoned opinion " a different view, as I understand his words, is given by 
the editor of the bearing of the decision on this point : as, in stating the 
points decided, he says : " (3) That in case of civil war, among the belliger- 
ent powers to be exercised, may be that of condemnation as ' enemy's 
property,' in the technical sense of the prize law. (4) That one of the 
proofs of ' enemy's property ' is, that it belongs to persons who are at the 
time permanent residents in a place or region which is under the actual con- 
trol of the enemy, and of which he has firm possession. (5) In the present 
case, Richmond, Va., was unquestionably within the lines of the enemy and 
under his actual control and de facto jurisdiction, civil and military." 



168 THE DISTINCTION IN BELLIGEEENCT. 

The State of Virginia recognized as Belligerent. 

the proceedings of the convention, the alliance, and the war. The 
western counties of the State nobly vindicated their honor and their 
fidelity by refusing submission to rebel mandates, and adhering to 
the Union. They did not, indeed, change their domicile, but they 
removed the power of rebel Virginia from the place of their domi- 
cile. The Virginia rebellion was not the act of individuals asserting 
that moral right of revolution which belongs to all subjects, but it 
was the assertion of a pretended State right. It was founded sole- 
ly on the deadly doctrine of secession, which claims that the State, 
as an organized political body, may sever itself from the Union. 
In attempting this, and carrying on the war, it acted by majorities 
claiming implicit obedience from the minority. The exterior 
boundaries of the State and its internal division by counties have 
been clearly defined ; and the city of Richmond, where these claim- 
ants reside, is within the territory over which, by known limits, 
this political body has, for nine months past, held absolute domin- 
ion."' 1 

On the argument in the Supreme Court in the case of 
the Amy Warwick, it was said by Mr. Dana for the libel- 
ants : This case "presents a single question which may be 
stated thus; at the time of the capture, was it competent 
for the President to treat as prize of war property found 
on the high seas, for the sole reason that it belonged to 
persons residing and doing business in Richmond, Vir- 
ginia?" 2 Black, 650. 

In the opinion of the Supreme Court, delivered by Mr. 
Justice Grier, it is briefly said with reference to the Amy 
Warwick : " All the claimants, at the time of the capture 
and before, were residents of Richmond, Va., and were 
engaged in business there. Consequently, their property 
was justly condemned as 'enemies' property.'" And 
thro.ughout this opinion the judgments of the court sustain- 
ing all these several captures are placed on the ground 

1 The cases cited by Judge Sprague, 2 Sprague's Dec. 137, — The Gerasi- 
mo, 11 Moore, P. C. 101, and ib. HO, the Venus, 8 Cranch, 253, — are in point 
for his argument, only on the assumption that the belligerent recognized is 
a political person; known by its precedent capacity to engage in war. 



THEORY OF OUR NATIONAL EXISTENCE. 169 

Bearing of the Case of the Amy Warwick. 

that the belligerency known to the court was the same as 
in the case of war between two distinct nations. 1 

The dissenting opinion by Mr. Justice Nelson, in which 
Taney, Ch. J., and Catron and Clifford, J J., concurred, 
relates mainly to the case of the Hiawatha, as of a neutral 
under the law of blockade. But the argument is supposed 
to be equally applicable to all these captures. In the con- 
clusion of this opinion, it is said : " All the cases before us 
in which the capture occurred before the 13th of July, 
1861, for breach of blockade or as enemies' property, are 
illegal and void." 

The case of the Amy Warwick and that of the Crenshaw 
differed essentially from the cases arising on the question 
of the blockade. The question involved in the former cases 
was not of the rights of neutrals, but of the rights of citizens 
of a State of the United States, as against the powers of the 
general government. And when, in these cases, the courts 
of the United States took the position of Prize courts in ref- 
erence to ships and cargoes belonging to such citizens, with- 
out waiting for any legislation by Congress, which must be 
supposed to have had power fully adequate to place the 
rights and obligations of such citizens within the reach of 
municipal law, 2 and applied the international law of mari- 

1 See ante, p. 17, note, as to Judge Grier's view of the relation of the 
States. i 

2 This had in fact been done, before this case arose, by the Act of Con- 
gress of July 13, 1861, 12 U. S. Stat. 255 (ante, p. 58), sec. 6 of which "for- 
feits any ship or vessel, belonging in whole or in part to a citizen or 
inhabitant of the interdicted State or district, found at sea or in any port of 
the United States. The forfeiture applies to the loyal as well as the dis- 
loyal citizens in the disaffected district." Judge Nelson, in the charge to the 
Grand Jury, Nov. 4, 1861, 5 Blatchford's Circuit Court, 551. Congress 
might have enacted a municipal law of prize as to property of residents of the 
eleven States at sea. As also showing that, at the time, no notice was taken 
in the discussion of any distinction in the law applicable to these several cases, 
it may be proper to point out that the only arguments cf counsel given by 
the reporter are those of Mr. Carlisle for the claimant* In the case of the 
Brillante, a neutral trader, for breaking blockade, the tassel and cargo be- 



170 THE DISTINCTION IN BELLIGERENCY. 

Confiscation under the Power of a Belligerent. 

time capture as of enemies' property, 1 on the ground of an 
existing belligerency, those courts recognized the eleven 
States of the Confederacy as a nation at war, more fully 
and precisely than was done by any foreign proclamation 
of neutrality. 

But the same confusion of thought and failure to ob- 
serve the political distinction in the recognition of bellige- 
rency, which are so noticeable in the Prize Cases, prevailed 
through the war. This is to be traced in the history of 
the so-called Confiscation Acts of Congress, and in the 
decision of cases founded on them, and in the claim made 
by the President for legislative power by Emancipation 
Proclamations. 

The property intended to be affected by the various 
statutes, commonly called Confiscation Acts, 2 was property 
belonging to private citizens, being residents of certain 
States or districts. These statutes were not, apparently, 
framed to reach property to be taken as belonging to a 
political personality to whom the law of conquest in rela- 
tion to public property might be applicable. There is no 
reference in these statutes to either any States, or any con- 
federacy of States, as liable to the loss of public property 
by conquest. 

There are, however, some cases in the reports which, 



ing Mexican, and that of Mr. Dana for the libellants in the case of the Amy 
Warwick, property of an American citizen seized on the high seas as 
enemy's property. These four cases were argued, both for the libellants 
and the claimants, by different counsel. As all the arguments could not be 
given, the reporter stated only those which " came to his hands in a form 
which relieved him of the labor which the others would have cost to re- 
write and condense them." 2 Black, 689. The arguments, so selected as 
representing opposite sides, respectively related to two distinct questions. 

1 Mr. Dana, in his edition of Wheaton, p. 375, in note 153, already cited, 
says, in reference to all these maritime captures : " Congress passed no laws 
establishing any new principles or rules respecting condemnation ; and the 
prize courts proceeded entirely upon the rules of international law." 

2 See references to these statutes, ante, pp. 59, 62. 



THEORY OF OUR NATIONAL EXISTENCE. 171 

Seizure or Acquisition by Conquest of the Confederacy. 

though they relate to seizures or confiscations by the gov- 
ernment of the United States following upon the rebellion, 
must 3'et be distinguished from the cases depending en- 
tirely on these Acts of Congress. 

In United States, Lyon, et al. v. Huckabee, 16 Wall. 
414, certain real estate situated in Alabama, known as 
the Bibb County Iron Works, had passed from the pos- 
session of private owners to that of the Confederate gov- 
ernment and been used, during the war, as a foundry for 
cannon, &c. This property had been occupied by the 
military forces of the United States, and, after having been 
taken possession of by the Treasury department, as cap- 
tured and abandoned property, had been sold at public 
auction. Afterwards, a release of any interest of the 
United States in the property, was given to the pur- 
chasers, Lyon et al., by an Act of Congress, Dec. 15, 
1866, Laws of 89th Congress. 15 U. S. Stat. Private 
Acts, p. 40. 

In the opinion of the court, delivered by Mr. Justice 
Clifford, without dissent, it is said, 16 Wall. 434 : — 

" They claimed title under the United States, and the record 
shows that the title of the United States was derived by conquest 
from the government of the late Confederate States. Our military 
forces captured the property while it was in the possession of the 
Confederate States as a means for prosecuting the war of the rebel- 
lion, and it appears that the captors took immediate possession of 
the property and continued to occupy it under the directions of 
the executive authority until the government of the Confederate 
States ceased to exist and the unlawful confederation became ex- 
tinct, when it was sold by the orders of the executive, and con- 
veyed to the plaintiff claimants. 

" All captures in war vest primarily in the sovereign ; but in 
respect to real property, Chancellor Kent says, the acquisition by 
the conqueror is not fully consummated until confirmed by a treaty 
of peace, or by the entire submission or destruction of the state to 
which it belonged, which latter rule controls the question in the 



172 THE DISTINCTION IN BELLIGERENCY. 

Seizure or Acquisition by Conquest of the Confederacy. 

case before the court, as the confederation having been utterly 
destroyed no treaty of peace was or could be made, as a treaty 
requires at least two contracting parties. Power to acquire terri- 
tory, either by conquest or treaty, is vested by the Constitution in 
the United States. Conquered territory, however, is usually held 
as a mere military occupation until the fate of the nation from 
which it is conquered is determined, but if the nation is entirely 
subdued, or in case it be destroyed and ceases to exist, the right of 
occupation becomes permanent, and the title vests absolutely in 
the conqueror. Complete conquest, by whatever mode it may be 
perfected, carries with it all the rights of the former government, 
or, in other words, the conqueror, by the completion of his con- 
quest, becomes the absolute owner of the property conquered from 
the enemy, nation, or state. His rights are no longer limited to 
mere occupation of what he has taken into his actual possession, 
but they extend to all the property and rights of the conquered 
state, including even debts as well as personal and real property. 

" Tested by these considerations, it must be assumed for the 
further purposes of this investigation that the title acquired by the 
plaintiff claimants from the United States was a valid title." 1 

The same doctrine was pointedly stated by Judge Brad- 
ley in the Fifth Circuit, in The United States v. A Tract 
of Land, 1 Wood, 475, in which instance the question was 
as to the claim to one half the proceeds, by the informer. 

" Bradley, Circuit Justice. The land in question in the case 
was seized for confiscation under the acts of Aug. 6, 1861, and 
of July 17, 1862. The information alleges that it had been con- 
veyed to the Confederate States government for the purpose of 
aidiug the insurrection. If this were the case, it became the prop- 
erty of the United States government by right of conquest, ipso 
facto ; that government succeeding to all the property held by the 
Confederate States government. The United States needed no 
proceedings for confiscation or forfeiture. They had plenary title 
and right of possession, if not actual possession, without any such 

1 In this case, anomalous in the matter of practice at least, if not in mat- 
ter of principle as well, the defendant Huckabee, as the owner in fee before 
the property had passed to the Confederate government, was the claimant, 
and the court below had given a decree in his favor. 






THEORY OF OUR NATIONAL EXISTENCE. 173 

Seizure or Acquisition by Conquest of Virginia. 

proceedings. It cannot be presumed that Congress intended to 
authorize a proceeding to forfeit or confiscate the government's 
own property, and divide the proceeds with the informer. Such a 
proceeding must be regarded as supererogatory and void." 

The seizure or acquisition judicially sanctioned in these 
cases is to be distinguished from any confiscation of the 
property of private persons, not only by its appearing to 
involve the assertion of a conquest in the technical sense, 
but also by the recognition of the Confederate government 
as a political personality in international relations, that is, 
a political personality capable as such of holding property 
by a right which could pass over to the conqueror by in- 
ternational law. 1 

The cases in the United States Circuit Court, Eastern 
District of Virginia, Aug. 2, 1877, known as the Virginia 
Gold Cases, United States v. Smith, and ten other similar 
cases, 1 Hughes, 347, involve the question of conquest of 
the State. These were for money distributed among the 
defendants by themselves, being officers of " the govern- 
ment of Virginia under the Confederacy" "on or about 
the 2d day of April, 1865, which was the day preceding 
the occupation of Richmond by the Union army." The 
facts were undisputed, and the question was on demurrer 
to the declaration. The Reporter states, ib. p. 349, — 

" As the suit against William Smith, the then governor, involved 
a sum large enough to authorize it to be carried to the Supreme 
Court, that has been heard first, and the others will be stayed to 

1 The claim of the government of the United States to property, which 
had been held in England as property of the Confederate government, 
rested upon a right essentially the same as that which was asserted in these 
cases. But as, in that instance, it was necessary to support the claim 
against persons who were not subject to its own legislative power, the cases 
in which it was made presented a somewhat different question for judicial 
decision. These cases, The United States v. Prioleau, 2 Hemming & Miller, 
659, and The United States v. McRae, 8 Law Rep. Equity Cases, 69, cannot 
be called cases of confiscation, and will be noticed hereafter in a different con- 
nection with the question of a conquest. 



174 THE DISTINCTION IN BELLIGERENCY. 

Basis of the Confiscation Legislation. 

await the result, in order that the principle which may be settled in 
it may govern the other cases." 

In the close of the opinion delivered by Judge Hughes 
overruling the demurrer and sustaining the right of the 
United States to appear as plaintiff, it is said, ib. p. 355, — 

"As to the proposition of defendant's counsel, that the war of 
the United States was not against the insurgent government of 
Virginia, and that the overthrow of that government was not a con- 
quest, but only the setting aside of one government, and the as- 
sumption of its functions by another, it can hardly find acceptance 
in view of the facts of history. The event happened at the close 
of a frightful war, and was directly produced by arms, and by armies 
in the field. The power of the United States was directed against 
the insurgent State governments, even more than against their con- 
federated authorities. The war was conducted for the overthrow 
of those governments. When they were crushed, the war ceased, 
and the historical fact of conquest cannot be changed or obliterated 
by the employment of theoretic paraphrases in speaking of it. As 
to the insurgent State governments, it was a conquest, and was fol- 
lowed by the legal results of conquest. This debt is due. It is 
due to some rightful claimant, and I think the law makes it suffi- 
ciently apparent who that claimant is. The demurrer must be 
overruled." 

The so-called Confiscation Acts were proposed and ac- 
cepted in Congress, and defended before the courts, 1 as 
legitimate applications of the law of international war- 
fare ; novel applications, perhaps, of its principles ; but 
still, actual discoveries like patentable utilizations of vir- 
tues long latent in well-known acids and alkalies, which, 
as such, would stand on record in international jurispru- 
dence as precedents for the customary law of nations 
applied in war between independent states, the jus belli as 
recognized by the rest of the world. 

But this pretension was based on the discrimination of 

1 See the cases, ante, pp. 62-79. A still more recent exposition of the 
rationale of the two Acts of Congress may be found in the United States v. 
Winchester, 9 Otto, 375, opinion by Waite, Ch. J. 






THEORY OF OUR NATIONAL EXISTENCE. 175 

Basis of the Confiscation Legislation. 

something more than a de facto, or temporarily insurrec- 
tionary, power. These measures presupposed a belligerent 
antagonist exercising sovereignty, as internationally recog- 
nized, and determining rights of persons and property by 
its own municipal law. The individual private persons 
whose property was to be affected by these statutes were 
to be discriminated, not by their personal acts or senti- 
ments, but by the fact of their being subjects or citizens 
of enemies' country. 1 

In this pretension, therefore, was involved the recog- 
nition of the eleven States as belligerent de jure; a 
recognition, of itself, contradictory of all right in the gov- 
ernment to treat the war as one instituted to suppress the 
rebellion of private individuals. 

If, however, it be thought necessary to form a judgment 
of the actual value of this claim of discovery of a " war 
power " capable of general application as between nation 
and nation, when belligerent, it will be fair reasoning to 
test it by its possible application in the supposed instance 
of wars between two nations whose absolutely distinct 
independence has never been controverted. 

In the instance of war between two of the great Powers 
of Europe, is the case legitimately supposable that the leg- 
islatures of the two countries should pass laws 2 authorizing 

1 Compare the reasoning in the extracts from the opinions of the court, 
ante, pp. 65, 70, 71, 72. 

2 The question is of legislative confiscation as something quite distinct 
from seizure by a purely military usage; as was shown in Planter's Bank v. 
Union Bank, 16 Wall. 483. In reference to an order by the general in 
command at New Orleans, it was said, in the opinion of the court, by Mr. 
Justice Strong, ib. 495. " It was simply an attempt to confiscate private 
property which, though it may be subjected to confiscation by legislative 
authority, is, according to the modern law of nations, exempt from capture 
as booty of war. Still, as the war had not ceased, though it was not fla- 
grant in the district, and as General Banks was in command of the district, it 
must be conceded that he had the power to do all that the laws of war per- 
mitted, except so far as he was restrained by the pledged faith of the gov- 
ernment, or by the effect of Congressional legislation. . . . But admitting, 



176 THE DISTINCTION IN BELLIGERENCY. 

Basis of the Confiscation Legislation. 

their respective armies to seize the property of subjects 
of the other which, as simple property, could contribute 
to the country's resources, whether real property or per- 
sonal, and sell the same, privately or at public auction, 
divesting, in the case of real property, the former title, 
under the local municipal law, and creating a new title to 
be valid, as if under the same municipal law, when the 
hostile force acting under this extraordinary, extra-muni- 
cipal legislation should have retired from the country ? 

May it be supposed that, under the legislative power of 
the public enemy, the property of any or all who may 
have engaged in the defence of their country in war 
against him, in either civil or militar} r functions, will be 
liable to confiscation and sale ; immovable property as 
well as movable ? Will the palaces, mansions, farms, 
houses, hovels, of all connected with the government, from 
the sovereign down to the lowest official, be liable to be 
permanently divested by such legislation ? If this " war 

as we do, that private property remained subject to confiscation, and also 
that the proclamation applied exclusively to inhabitants of the district, it is 
undeniable that confiscation was possible only to the extent and manner 
provided by the Acts of Congress. . . . They designated government agents 
for seizing enemies' property. . . . The system devised was necessarily ex- 
clusive. No authority was given to a military commandant, as such, to 
effect any confiscation. . . . Those enactments declaring that private prop- 
erty belonging to certain classes of persons might be confiscated, in the 
manner particularly described, are themselves expressive of an intent that 
the rights of conquest should not be exercised against private property ex- 
cept in the cases mentioned, and in the manner pointed out." 

Mr. Justice Bradley dissented from the judgment, arguing ib. 504: "The 
officer in command of the armies of the United States, after the possession 
of New Orleans had been secured, required debtors in New Orleans of credit- 
ors in the enemy's lines to pay such debts to the proper receiving officer of 
the army. That the debts due from the citizens of a belligerent State to 
the citizens of the State with whom the former is at war may be confiscated 
is undoubted international law. If such confiscation is, in fact, made by 
the military authorities, and if the action of those authorities is assumed or 
confirmed by the sovereign authority, the confiscation is perfect. ... In 
my judgment, such a disposition of the case would better accord with the 
principles of international law, and the mutual rights and relations of all 
the parties concerned." 



THEORY OF OUR NATIONAL EXISTENCE. 177 

Limit to Confiscation of Real Estate. 

power " exists in respect to immovable property, it is 
important for conveyancers to know whether its effects 
continue beyond the duration of the hostile occupa- 
tion. 1 

The joint resolution which was adopted by Congress at 
the date of the passage of the Act of Juty 17, 1862 {ante, 
p. 64, note), and was accepted by Mr. Lincoln, as "sub- 
stantially one " with the statute, when he approved and 
signed both (see Message of same date), was understood 
to have been passed in view of objections which he had 
prepared to state on returning the bill, without signature, 
and which were founded on art. iii., § 3, cl. 2, of the 
Constitution. 2 

1 Dana's Wheaton's Int. Law, 8th ed. pp. 432-444, editor's note, 169, 
Conquest and Belligerent Occupation, which bears on many of the points noticed 
in this chapter; p. 437, under Belligerent Occupation, (4) Immovable Property. 
In reference to public lands appropriated by the conqueror: " As his occupa- 
tion is subject to the chances of war, so is his title to what he cannot re- 
move and corporeally make his own. He cannot, therefore, give to another 
a permanent title to public lands. ... As to private property in immova- 
bles, the occupying power is not considered, in the modern practice of 
nations, as authorized to confiscate their use and income. He may make 
such use of them as the necessities of war require, and subject them to 
taxes and contributions ; but the mere fact of military occupation does not 
work a transfer of the uses or income of private lands, or authorize such a 
transfer to be, in fact, made." 

2 "No attainder of treason shall work corruption of blood or forfeiture, 
except during the life of the person attaintable." See Macpherson's Hist. 
Rebellion, 197 ; Bigelow v. Forest, 9 Wall. 341 ; Day v. Micou, 18 Wall. 
160; Confiscation Cases (Slidell's land), 20 Wall. 92, a case from the Fifth 
Circuit, 1 Woods, 221. 

In the opinion of the court in Wallach v. Van Riswick, 2 Otto, 208, it is 
said by Field, J., " It was not doubted that Congress might provide for for- 
feitures effective during the life of the offender. The doubt related to the 
possible duration of the forfeiture, not to the thing forfeited or to the ex- 
tent and efficacy of the forfeiture while it continued." Under a municipal 
law, the children, if also guilty of treason, would always be equally punish- 
able, by loss of estate, with their ancestor. But under this ingenious blend- 
ing of a proceeding in rem, jure belli, with municipal law, the children, who 
may have been the more active in treason, would have their inheritance 
secured to them by the confiscation of his estate, flagrante bello, for the life- 
time of their parent. 



178 THE DISTINCTION IN BELLIGERENCY. 

Commercial Staples as Contraband. 

But all belligerent nations cannot be expected to limit 
themselves by the Constitution of the United States. It 
is easy to understand that while a region is occupied by a 
victorious enemy he may protect whom he will in the pos- 
session of any real property, and that, on his withdrawal, 
the holder under him should not be liable, in the courts of 
the country, as trespasser, or for use during the hostile oc- 
cupation. But it can hardbybe supposed that any absolute 
title in fee, or fqr a life, or for years, could be recognized 
under the local municipal law ; at least, in the absence of 
some treaty stipulation. 1 

Is it to be supposed that hereafter, in the 1 case of wars 
carried on with a nation possessing districts rich in cotton, 
or other commercial staple, such as tobacco, rice, sugar, 
or coffee, the judicial officers 2 of the other belligerent 

1 Dana's Wheaton's Int. Law, editor's note, 169 (p. 442) : "Postliminy is 
applied to all lands ; for the belligerent occupant does not acquire absolute 
title to them, but only the usufruct." I have not found any allusion to the 
operation of this principle in any of the cases relating to confiscation under 
these Acts. 

2 In section 6 of the Act of March 12, 1868, it is made the duty of any 
soldier or sailor in the service, " who may take or receive any such aban- 
doned property, or cotton, sugar, rice, or tobacco, from persons in such 
insurrectionary districts," to turn it over to the agents, &c. Under section 
8 of the Act of July 2, 1864, the government agents were authorized to use 
the proceeds of property seized, in purchasing other " products of the States 
declared in insurrection " for subsequent sale, — at a profit to the govern- 
ment, — as may be assumed. But, otherwise, the acts of Congress did not 
discriminate any particular kind of property. In Young v. L T nited States, 
7 Otto, 58, Waite, Ch. J., said : " The authority for the capture of the cotton 
was not derived from the law of Congress, but from the character of the 
property, it being ' potentially an auxiliary ' of the enemy, and constituting 
a means by which they hoped and expected to perpetuate their power." 
Referring to Chase's opinion in Mrs. Alexander's cotton, ante, p. 66. This 
" peculiar character " of cotton is a judicial discovery. In the opinion of 
the court by Miller, J., in Sprott v. United States, 20 Wall. 468, it is said, 
" It is a fact so well known as to need no finding of the court to establish it, 
a fact which, like many other historical events, all courts take notice of, that 
cotton was the principal support of the rebellion, so far as pecuniary aid 
was necessary for its support." 

In Rothschilds v. United States, 6 Ct. CI. 204, the property seized was 
tobacco. 



THEORY OF OUR NATIONAL EXISTENCE. 179 

Two Questions of International Importance. 

must regard such staple product as property of a " pecu- 
liar character," or as " hostile property," or as property 
which is " potentially an auxiliary of the enemy ; " so that, 
within the reach of such military forces, all purchase and 
trade in such property, even by subjects of neutral nations, 
shall be void, and all such property shall be liable to seiz- 
ure for the general purpose of disabling the' enemy, and to 
sale for sustaining the general military treasury of the 
captor ? 

Or is the law of civilized warfare, as expounded by the 
United States, to be hereafter that all movable property 
on enemies' territory, of any kind, shall be liable to seizure 
by the hostile forces, — whether owned by public official, 
or private citizen ; by man, woman, or child ; native citi- 
zen, or subject of some neutral nation, who may be found 
dealing or trading in such enemies' jurisdiction. 1 

In the application of the so-called Confiscation Acts, 
two questions have arisen involving the recognition of 
principles of international jurisprudence. 

1. How far such legislation could affect the rights and 
obligations of non-resident aliens ; that is, of aliens resid- 
ing in foreign neutral countries. 

1 In a dissenting opinion by Mr. Justice Field in Sprott v. United States, 
20 Wall. 468, it is said/ " They [the United States] have never asserted [?] 
any greater rights arising from capture of property on land in the hands of 
citizens engaged in the rebellion than those which one belligerent nation 
asserts with reference to such property captured by it belonging to the citi- 
zens or subjects of the other belligerent. All public property which is 
movable in its nature, possessed by one belligerent, and employed on land 
in actual hostilities, passes by capture. But private property on land, 
except such as becomes booty when taken from enemies in the field or 
besieged towns, or is levied as a military contribution upon the inhabitants 
of the hostile territory, is exempt from confiscation by the general law of 
nations." See Wheaton, Int. Law, § 346, and Mr. Dana's edition, note 169, 
Belligerent Occupation (6) ; Halleck's Int. Law (edition, 1861), p. 456. The 
opinion delivered for the court by Mr. Justice Field in Dow v. Johnson, 10 
Otto (100 U. S.), 158, and the dissenting opinion of Clifford and Miller, J.J., 
may be of interest in this connection. 



180 THE DISTINCTION IN BELLIGERENCY. 

Confiscation affecting Non-Resident Aliens. 

2. How far such legislation could affect the rights and 
obligations of resident aliens, that is, aliens residing with- 
in the limits of the United States ; meaning the eleven 
States of the so-called Confederacy, as well as any other 
part of the United States. 

In the cases of La Plante, 6 Ct. CI. 319 ; of Harrison, 
ib. 323 ; and of Hill, 8 Ct. CI. 470, the claimants were 
French and English subjects residing, during the war, in 
their respective countries, who sued for the proceeds of 
cotton seized or captured under the so-called Confiscation 
Acts, which had been previously purchased, on their 
account, through agents within the limits held at the time 
by the Confederate force. These claims were contested 
on the part of the government, on the ground that, under 
the circumstances, such aliens could not acquire a valid 
title to the cotton ; at least, not as against the United 
States. The court, however, recognized the validity of 
the purchase, and sustained the claims under the statutes. 1 

In two of these cases, that is in Harrison's case and 
Hill's case, one of the members of the court, Judge Nott, 
dissented, on the ground that the claimants' purchase of 
cotton was, if not criminal, at least illegal, as " a traffic 
carried on in defiance of the municipal law and public 
policy of the United States," which, for that reason, should 
not be recognized in any court of the United States, and 
especially not in the Court of Claims, under the condition 
stated in the third section of the Act of March 12, 1863, 
the " Captured and abandoned property " Act (ante, p. 67, 
note) because the act of purchase gave " aid and comfort " 
to the rebellion, whether the non-resident alien purchaser 
could be criminal in such purchase or not. 6 Ct. CI. 327. 

1 In the Ouachita Cotton cases, 6 Wall. 529, the claim of an alien resi- 
dent in France was disallowed because of want of title in the party of whom 
he had purchased the cotton in New Orleans while occupied by the govern- 
ment forces. It was not denied that such neutral might have purchased 
cotton from any one in the districts held by the Confederate force. 






THEORY OP OUR NATIONAL EXISTENCE. 181 

Confiscation affecting Non-Resident Aliens. 

In the case of Collie v. The United States, 9 Ct. CI. 
481, the claim was by a British subject residing in Eng- 
land during the war, for cotton purchased in the Southern 
States, and with proceeds of blockade-running voyages. 
In the opinion of the court, delivered by Judge Loring 
and sustaining the claim, it is argued that the words " aid 
and comfort to the rebellion," as used in the statute, must 
be supposed to relate to a crime, and not to an act, and 
that, as the non-resident alien could not be chargeable 
criminally, the clause could be no bar ; and that, if the 
statute imputed a crime in such case, the claimant must, 
by consequence, be entitled to the benefits of amnesty 
which should remove his disability ; on the authority of 
Carlisle v. United States, 16 Wall. 147, post, p. 189. 

Judge Nott dissented in this case, not only on the 
ground previously taken by him as to all purchases within 
the districts held by the rebel forces, but also because, in 
this instance, the claimant had been engaged in running 
in goods through the blockade. 1 He also held that the 
statute must be taken to refer to an act, independently of 
any criminality of the actor, and that, because not punish- 
able for the act as a crime, a non-resident alien could not 
have the benefit of the amnesty. 2 

The case of Young, assignee of Collie, 97 U. S., 7 Otto, 
39, appears to have been the same case on appeal from 
the Court of Claims. 3 But the decision of the Supreme 
Court, Field, J., dissenting, was against allowing the 
claim under the Acts of Congress. 

In each of the two courts, the case was taken to depend 
on the question whether Collie should be held to have 

1 In Bates's Case, 4 Ct. CI. 569, the claimant, who was held to have given 
aid and comfort by running the blockade, was a citizen of South Carolina. 

2 See also the opinion of the court delivered by Judge Nott, in Green's 
Case, 6 Ct. CI. 420. 

3 Though the findings of facts, in regard to the importation of contra- 
band of war, differ. 



182 THE DISTINCTION IN BELLIGERENCY. 

Confiscation affecting Non-Kesident Aliens. 

given aid and comfort to the rebellion, according to the 
intent of the words used in the statute. 

In the opinions delivered for the Court of Claims, by- 
Judge Loring, and for the Supreme Court by Chief Jus- 
tice AVaite the charge of giving aid and comfort is pre- 
sented as depending on the position of non-resident aliens 
in furnishing munitions of war to the Confederacy. The 
decision in the claimant's favor, by the Court of Claims, as 
turning on the finding that the claimant had " imported 
goods, not munitions of war." 9 Ct. CI. 447. 449, and the 
decision against him by the Supreme Court, on the finding 
that he had imported cannon, &c, 7 Otto, 43—46. The 
two courts may therefore be taken to have agreed in hold- 
ing that dealing in contraband of war, under the circum- 
stances, should exclude the claimant. 

In these opinions, it is intimated, by the argument, 
rather than squarely asserted, that this case, or this ques- 
tion of giving aid and comfort to the rebellion by a non- 
resident alien, was to be determined on principles equally 
applicable to the position of neutrals in any war between 
two independent nations. 1 

It is said by Chief Justice Waite, 7 Otto, 63. — 

" A non-resident alien need not expose himself, or his property, 
to the dangers of a foreign war. He may trade with both bellig- 
erents, or with either. By so doing, he commits no crime. His 
acts are lawful in the sense that they are not prohibited. So long 
as he confines his trade to property not hostile or contraband, and 
violates no blockade, he- is secure both in his person and his prop- 
erty. If he is neutral in fact as well as in name, he runs no risk. 
But as soon as he steps outside of actual neutrality, and adds ma- 
terially to the warlike strength of one belligerent, he makes him- 
self correspondingly the enemy of the other. To the extent of his 
acts of hostility, and their legitimate consequences, he submits him- 
self to the risk of* the war into whose presence he voluntarily 

I Compare 9 Ct. CI. 447-449 ; 7 Otto, 60, 63. 



THEORY OF OUR NATIONAL EXISTENCE. 183 

Confiscation affecting Non-Resident Aliens. 

comes. If he breaks a blockade, or engages in contraband trade, 
he subjects himself to the chances of capture and confiscation of his 
offending property. If he thrusts himself inside the enemies' lines, 
and for the sake of gain acquires title to hostile property, he must 
take care that it is not lost to him by the fortune of war. While 
he may not have committed a crime for which he can be person- 
ally punished, his offending property may be treated by the adverse 
belligerent as enemy property. He has the legal right to carry, to 
sell, and to buy ; but the conquering belligerent has a correspond- 
ing right to capture and condemn. He enters into a race of dili- 
gence with his adversary, and takes the chances of success. The 
rights of the two in law are equal. The one may hold if he can, 
and the other seize. 

" Collie, having been a non-resident alien, was not a traitor ; but 
in his foreign home he seems to have done as much as any one per- 
son could do to aid and assist the insurgents in their struggle for 
supremacy." 

It is not clear whether the Chief Justice intended to 
hold neutral carriers of contraband to a different moral 
standard, in case of civil wars, from that applicable in or- 
dinary war ; nor yet whether he even accepted the doc- 
trines usually received, as to trading in contraband, in 
case of war between two belligerent nations. 1 

In caption 5 of the report of the case of the Peterhoff, 
5 Wall. 28, this proposition, " the conveyance by neutrals 
to belligerents of contraband articles is always unlawful," 
is given as the doctrine of the case. But the language of 
Chief Justice Chase delivering the opinion, ib. 56, does 
not justify this, — " We know of but two exceptions to 

1 Although the claimant, Collie, had sent out cannon, &c, as a gift to the 
Confederate government, it is doubtful whether this action should have 
been discriminated in the American courts from trade in contraband. Such 
a distinction is not made in the above opinion ; and it seems doubtful 
whether any service rendered in his own country, by the subject of a neutral 
nation, to one belligerent, can be held a hostile act in the law courts of the 
other. The only redress in such case would be by application to the gov- 
ernment of such neutral. 



184 THE DISTINCTION IN BELLIGEEENCT. 

Eights and Obligations of Non-Resident Aliens. 

the rule of free trade by neutrals with belligerents ; the 
first is that there must be no violation of blockade or 
siege ; and, second, that there must be no conveyance of 
contraband to either belligerent." 

The same judge, in The Bermuda, 3 Wall. 551, said : 
" So too, except goods contraband of war, or conveyed 
with intent to violate a blockade, neutrals may transport 
to belligerents whatever belligerents may agree to take." 

But these citations are only loose and misleading ex- 
pressions of the doctrine that a belligerent has the right to 
seize vessels and cargoes attempting to run his blockade, 
or found on the high seas carrying munitions of war to the 
other belligerent ; while, on the other hand, neutrals have 
the right to do either ; subject to the risk of capture under 
his right. There is no unlawfulness in the act, on their 
part. 1 

It must be clear that, in the case of war between two 
distinct nations, the legislative authority of neither bellig- 
erent could affect the rights and obligations of the subjects 

1 " There is nothing in our laws, or in the law of nations, that prohibits 
our citizens from sending armed vessels, as well as munitions of war, to for- 
eign ports for sale. It is a commercial adventure, which no nation is bound 
to prohibit, and which only exposes the persons engaged in it to the penalty 
of confiscation," Story, J., in The Santissima Trinidad, 7 Wheat. 340, — the 
" confiscation," that is to say, of the particular vessels and cargoes seized in 
such commercial adventure; that is, in the act, or in delicto, as the phrase is, 
Wheaton's Int. Law, § 506, though there is no criminality, or delictum, in the 
act. This is eminently American doctrine. " The right of the neutral to 
transport, and of the hostile power to seize, are conflicting rights, and 
neither party can charge the other with a criminal act." 1 Kent's Com. 
145. The application of this in the instance of civil wars has always been 
asserted diplomatically by the United States. See the correspondence cited 
by counsel for Collie, the claimant, in 8 Ct. CI. 434 ; Lawrence's Wheat. 
Int. Law, p. 846, note 241 by the editor. 

The same doctrine was very fully stated, with special reliance on Ameri- 
can authorities, by Lord Chancellor Westbury in Ex parte Chavasse, re 
Grazebrook ; a case arising from the civil war in America. See The Jurist, 
•vol. xi. pt. i. 1865, p. 400 ; and by Dr. Lushington, ib. p. 1025 ; and the 
citations in the argument for Collie, 9 Ct. CI. 432-445. 



THEOKY OF OUR NATIONAL EXISTENCE. 185 

Operation of the Statute as to Non-Resident Aliens. 

of neutral nations, residing in their own country, to deal 
with the other belligerent nation ; or could do so only as 
far as might be done in the application of the powers inci- 
dental to belligerency, in respect to blockade, search for, 
and seizure of contraband of war, &c, on the high seas. 1 
In such case neutrals, residing in their own country, who 
voluntarily abet or give encouragement to one of two such 
belligerents cannot be regarded as public enemies by the 
other belligerent. 

In the opinion of the court delivered by Chief Justice 
Waite, in Young, Assignee of Collie, v. United States, 7 
Otto, 62, it is said, — 

" There can be no doubt that the words ' aid or comfort,' are 
used iu this statute in the same sense they are in the clause in the 
Constitution denning treason (art. 3, sec. 3), that is to say in their 
hostile sense. The acts of aid and comfort which will defeat a suit 
must be of the same general character with those necessary to con- 
vict of treason, where the offence consists in giving aid and comfort 
to the enemies of the United States. But there may be aid and 
comfort without treason ; for ' treason is a breach of allegiance, and 
can be committed by him only who owes allegiance, either per- 
petual or temporary.' United States v. Wiltberger, 5 Wheat. 96. 
The benefits of the statute are withheld not for treason only, but 
for giving aid and comfort as well. A claimant to be excluded 
need not have been a traitor, it is sufficient if he has done that 
which would have made him a traitor if he had owed allegiance to 
the United States. 2 

1 See the doctrine fully set forth in the opinion of the court by Chase, 
Ch. J., in The Bermuda, 3 Wall. 514, in which case the argument and de- 
cision condemning the vessel was entirely based on grounds applicable to 
neutrals in the case of war between independent nations. See also Judge 
Loring, opinion in Collie v. United States, 9 Ct. CI. 447, and Field, J., opin- 
ion in Carlisle v. United States, 16 Wall. 154. 

2 The reference is to the Act of March 1863, sec. 3, 12 U. S. St. 820, in which 
the words "aid and comfort" are employed. These are technical terms, long 
used to describe a certain crime in subjects as against their sovereign. It might 
be urged that, as a non-resident alien cannot commit treason, he cannot give 
that " aid and comfort" which defines treason. Allegiance is essential to 
such " aid and comfort." But in sec. 12 of the Act of March 3, 1863, 12 U. S. 



186 THE DISTINCTION IN BELLIGERENCY. 

The Position of Non-Resident Aliens. 

It would appear therefore that the decision of the Su- 
preme Court sustained the view taken by Judge Nott in 
the Court of Claims ; that is, that non-resident aliens may 
be judicially known as having given aid and comfort to 
the rebellion. 

In the case of any supposable rebellion, the sovereign 
whose authority is resisted may prefer to rely upon the 
ordinary methods of municipal jurisdiction, civil and crim- 
inal, as the means of sustaining such authority. In such 
case, aliens, though residing in foreign and neutral coun- 
tries, cannot do, by their agents residing within the juris- 
diction of that sovereign, what those agents could not do 
for themselves ; and, in so far as they should, by those 
agents, engage in enterprises forbidden by the municipal 
law of that sovereign, their rights of property cannot re- 
ceive the protection of that law. 

But the obligation of such aliens to conform themselves 
to this is not founded on any allegiance on their part, 
but solely on the presumption that the authority of that 
sovereign is adequate to protect all rights of person and 
property within a particular territory, and if the legiti- 
mate sovereign should be unable to give them, as such 

St. 767, amending the Act establishing the Court of Claims, it is pro- 
vided that " in order to authorize the said court to render a judgment in 
favor of any claimant, whether a citizen or not," it must be set forth in the 
petition that such claimant has not in any way voluntarily abetted or given 
encouragement to rebellion against the said government of the United 
States ; which allegation may be traversed by the government, and if, on 
trial, such issue shall be decided against'the claimant, his petition shall be 
dismissed." The words " voluntarily abetted or given encouragement to 
rebellion " are less technical and of broader signification, and such as might 
be more effective to sustain the argument in this opinion, and in those of 
Judge Nott in the Court of Claims, that the intention of Congress was not 
to exclude only such persons as could be chargeable for an illegal act, but 
also any who, in any part of the world, had abetted or encouraged that 
which the government here regarded as rebellion. May it be supposed that, 
in the case of claimants being foreigners who had, at home, written or 
spoken on this subject, the court would take testimony as to the effect of 
their opinions .1 



THEORY OF OUR NATIONAL EXISTENCE. 187 

The Position of Non-Resident Aliens. 

aliens on whose allegiance he has no claim, that protec- 
tion, by reason of the adverse insurgent force, he cannot 
hold such aliens responsible in violating any legislation 
intended to suppress such rebellion by restricting such 
commercial intercourse. 1 And, even if this were doubtful, 
if he assumes the position of a belligerent power, in rela- 
tion to the rebel antagonist, in order to exercise the rights 
of blockade, search, and seizure of contraband of war, on 
the high seas, as against subjects of other nations who, in 
the pursuit of their own interests, may assist the insur- 
gents by trading with them, such sovereign can have, as 
against such aliens, only the same rights which he would, 
as a belligerent power, have in case of war with an inde- 
pendent nation. In imposing upon such aliens the liabili- 
ties of neutrals in an international war, such a sovereign 
accords also to them the rights of neutrals in such a war. 2 

1 The American government never undertook to enforce section 4 of the 
Act of July 13, 1861, which contemplated the closing of ports, not in its 
possession, against any ship or vessel from beyond the United States. 
England and France informed the Secretary of State that they would con- 
sider such a decree null and void, and that they would not submit to meas- 
ures taken on the high seas in pursuance of such decree. Lawrence's 
Wheat. Int. Law, p. 555 ; editor's note 175, referring to Parliamentary 
Papers, 1862, North America, No. 172, Lord Lyons to Lord John Russell, 
Aug. 12, 1861 ; Dana's Wheat. Int. Law, p. 687, editor's note, 289, Municipal 
Surveillance. 

2 In La Plante's case, 6 Ct. CI. 321, the cotton claimed had been pur- 
chased by an agent residing in Carolina for the claimant, a French sub- 
ject residing in France. It was said for the court, by Judge Milligan : " At 
the time of the appointment of Henderson, as the agent of the claimant, 
there was no law in force in the United States that interdicted trade between 
a neutral and resident citizen of the national or insurrectionary States ; and 
none could have been enacted without at least great injury to the nation, 
and perhaps giving just ground of offence to neutral powers. But, however 
this may be, and we do not undertake to decide it now, the blockade was set 
on foot to meet this very difficulty, by cutting off free intercourse between 
neutral powers and the insurgent States. What was its effect ? " &c. See 
also argument for the counsel for the claimant, ib. 312. " In general, a 
neutral merchant trading in the ordinary manner with a belligerent coun- 
try, does not, by the mere accident of his having a stationed agent there, 
contract the character of the' enemy." Phillimore, Int. Law, pt. ix. c. vi. 



188 THE DISTINCTION IN BELLIGERENCY. 

The Position of Non-Resident Aliens in a Civil "War. 

Neither, therefore, in case of belligerency being recog- 
nized iri civil war, can aliens residing in other countries 
be held responsible by either belligerent party, for any 
thing they may do for the interest of the other ; except as 
they might equally be responsible as between two belli- 
gerent nations, under the laws of international warfare. 
They take only the risks which exist in that case, and, as 
far as they are concerned, neither party is more rebel or 
more sovereign than the other ; and, as to them, neither 
party more than the other can be both belligerent and 
sovereign. 1 

sec. 85. Judge Nott's argument in his dissenting opinions, 6 Ct. CI. 327, 8 ib. 
472, appears to be that, the agent being a citizen of the United States, the 
neutral could not do by him what the agent could not do for himself. But, 
if this were correct, there must be a difference as to the position of neutrals, 
in the case of an ordinary war and of a civil war. To deny neutrals in an 
ordinary war the right to employ agents in the territory of either belligerent 
would be denial of all neutral trade. 

i In Green's case, 8 Ct. CI. 420 (Dec. 1872), post, 190, Judge Nott said 
of this class of cases, affecting non-resident aliens, — " It remains to be de- 
termined whether a personal disability to maintain an action exists in the 
absence of crime, or whether the statute intended to create a trust for the 
benefit of non-resident aliens who violated their obligations of neutrality by 
giving aid and comfort to the rebellion." But, if there was any neutrality 
in the case, it was that neutral nations did not undertake to discriminate the 
belligerent parties as being, the one — the sovereign, and the other — the 
rebel. The decision in the case of The Georgia, 1 Lowell, 96 ; 7 Wall. 32, 
in which the vessel, which had been an armed cruiser under a commission 
from the Confederates, had been seized on the high seas, after having been 
sold to a British subject in the port of Liverpool, rested on the proposition 
that a neutral purchaser must be held to have known that the Confederate 
flag was as good a flag to fight under as was that of the United States. If 
the vessel had been a pirate, with no claim to a national flag, it could not 
have been seized after such a sale. If the American government had not 
accepted this position, the sale of the vessel, in a foreign port, could have 
been rendered illegal only by some previous legislation as to sales of Ameri- 
can ships abroad, or some notice given to foreign nations, and it is doubtful 
whether such legislation or notice would have been recognized by any for- 
eign country which had asserted a position of neutrality, as if between two 
nations at war. By this seizure, the American government defined the 
position of neutral nations as much as it had been by the British Procla- 
mation of May 13, 1861, ante, p. 56. 



THEOEY OF OUR NATIONAL EXISTENCE. 189 

Position of Aliens in reference to Civil War. 

The clause in the Act of Congress under which this 
claim was presented makes no distinction, in respect to 
their residence, among claimants who are not citizens. By 
the decision rendered in this case, the Supreme Court 
takes the position that in case of civil wars the subjects of 
neutral nations, residing in their respective countries, may 
be judicially distinguished in the courts of one of the 
belligerent parties as having given aid and comfort to 
rebellion against such belligerent. 1 

There may be some doubt whether the court has pro- 
fessed to base this decision on a doctrine as to the 
obligations of subjects of neutral nations in case of any 
international war, or on a doctrine applicable exclusively 
in civil wars. 

But if the actions judicially distinguished as giving 
aid and comfort to a rebellion are such as neutrals are 
competent to perform in the case of war between two 
independent nations, it may be essential that foreign gov- 
ernments should determine for themselves, whether the 
antagonist recognized as belligerent was a confederacy of 
States having de jure the political capacity to wage war, 
or was an insurrectionary de facto belligerent. 

In the cases of Carlisle and Henderson, 6 Ct. CI. 398, 
8 id. 153, and Carlisle v. United States, 16 Wall. 147, the 
claim was for the proceeds of cotton taken, as belonging 
to the parties being " subjects of the Queen of Great 
Britain " residing in Georgia before and during the war, 
and proved to have engaged in the manufacture of salt- 

1 If this is the true doctrine of modern international jurisprudence, it may 
be important that it should be more generally known in those places where 
a very large proportion of the people make it a matter of pride and princi- 
ple to exhibit a chronic sympathy with every revolt against established 
government in other countries. Judge Sprague in the Amy Warwick, 2 
Sprague's Decisions, 136, was careful to recognize " that moral right of 
revolution which belongs to all subjects," and the same solicitude may 
be found in many other judicial opinions upholding the action of the gov- 
ernment against the rebellion. 



190 THE DISTINCTION IN BELLIGERENCY. 

Liabilities of Resident Aliens in Civil War. 

petre, purchased of them by the Confederate government 
for the manufacture of gunpowder. It was decided in 
the court below and in the Supreme Court, on appeal, 
that these resident aliens could sustain their claim under 
the statutes by receiving, as citizens in the rebellion re- 
ceived, the benefit of amnesty under the proclamations, 
for having given "aid and comfort'' to the rebellion; 
that is, in each court it was held that aliens resident in 
the southern States could be chargeable, for such action, 
with the crime of treason against the United States. 1 

This view was reaffirmed in the Court of Claims by the 
decision of Green's case, 8 Ct. CI. 482, in which the claim- 
ant was a British subject domiciled in Savannah during 
the war, and who, in the report, is not stated to have 
participated in the rebellion or given it aid or assistance 
otherwise than by continuing his residence there during 
the war. 2 

1 In ' Collie v. United States, 9 Ct. CI. 452, Judge Loring remarked, — 
" The application of the argument of the defendants that we are called 
upon by them to make is, to refer the words of the statute, as to aid and 
comfort to the rebellion, in the cases of our own citizens and aliens resident 
here and owing allegiance here, exclusively to the crime and not at all to 
the act ; and in the case of aliens, not resident here and not owing allegiance 
here, exclusively to the act and not at all to the crime." 

2 The opinion for the court was delivered by Judge Nott, who in the 
other cases had held non-resident aliens chargeable for aid and comfort to 
the rebellion. In this case, Judge Nott yielded to the authority of Carlisle 
v. Henderson ; but, for himself, took the ground that resident aliens were in 
the same position in these cases as non-resident aliens ; that is, were excluded 
from the benefit of the amnesty, because never chargeable for crime, though 
liable to exclusion of their claim for giving aid and comfort. Denying, 
apparently, "the amenability of a resident alien to the law of treason, as to 
which I supposed [he says, ib. 419] that there was not a lawyer in the 
world who could entertain a doubt," — on the ground that the authorities 
make ;< the allegiance reciprocal to the protection," and that the rebellion 
made that protection impossible. But this is no more true of the resident 
alien than of the native citizen. The territorial jurisdiction determines the 
allegiance in the case of each. The relations of persons who owe no alle- 
giance by their residence are those as to which the question of protection or 
no protection is material. Ante, p. 186. The doctrine in Carlisle v. Hen- 



THEORY OF OUR NATIONAL EXISTENCE. 191 

Importance of the Distinction in case of Aliens. 

In the case of any supposable rebellion, the subjects of 
foreign States who may be residing within districts occu- 
pied by insurgent forces which, as such, and only as such, 
may have received recognition, as a belligerent de facto, 
from the belligerent claiming to be the actual sovereign, 
will not be protected by such temporary belligerency from 
responsibility to that actual sovereign. Though they owe 
no natural allegiance to such sovereign, as do the native 
or naturalized inhabitants, they owe a temporary or quali- 
fied allegiance, and for aid rendered to the insurgents, 
though recognized belligerents, they may be charged with 
treason as if native or naturalized. 1 

But the subjects of neutral nations who, during a war 
between two belligerent nations, may be within the terri- 
torial limits of either of such nations cannot be held indi- 
vidually responsible, in their persons or their property, to 
the other belligerent for any thing which they may do 
contrary to the policy or interest of such belligerent ; ex- 
cept as the native subjects of the country in which they 
are living may be equally responsible under the laws and 
usages of war ; even though the persons and property of 
such aliens, if resident or domiciled, are not specially pro- 
tected by international law against the legislation of such 
belligerent when in hostile occupation of the country in 
which they may then be. 2 

derson, as to allegiance due from alien residents in one of the Southern 
States, was reaffirmed by the Supreme Court in Radich v. Hutchins, 5 
Otto ; 210. 

1 In the opinion delivered by Mr. Justice Field for the court in Carlisle 
v. United States this doctrine of allegiance of the alien resident in the 
insurrectionary districts is assumed rather than shown. It is there taken 
on the authority of the opinion in Hanauer v. Doane, 12 Wall. 347, — " That 
he who, being bound by his allegiance to a government, sells goods to the 
agent of an armed combination to overthrow," &c. But in that case the 
party was a citizen of one of the Southern States. 

2 Phillimore Int. Law, p. ix. c. vi. sec. 85 ; Wheaton, Int. Law, Dana's ed. 
sees. 318-335, Lawrence's ed. 557-576. In United States v. Diekelman, 2 
Otto, 520, the defendant with his vessel, under the German flag, came 



192 THE DISTINCTION IN BELLIGERENCY. 

Importance of the Distinction in reference to Aliens. 

Hence it may appear that, in cases where aliens residing 
within the limits held by the confederacy were concerned, 
it was material to determine whether the belligerent recog- 
nized as the antagonist to the United States was a con- 
federacy of States, each capable by its political nature of 
carrying on war, or was an insurgent force having no such 
political character, and being only belligerent de facto. 

For, though neutral nations can have neither rights nor 
obligations in reference to the view taken by the govern- 
ment of the United States of the allegiance of native or 
naturalized citizens of the eleven States, the question 
whether subjects of neutral nations, temporarily resident 
in those States, can be chargeable with treason against the 
United States and suffer loss of property, under the puni- 
tive legislation of the United States for the suppression of 
a rebellion, depends upon the question whether such aliens 
and the governments of their respective countries had the 
right to consider those States as the belligerent at war 
with the United States, or were bound to know that there 
was no belligerent, as against the United States, other than 
a body of insurgents recognized only as a temporary and 
de facto power with belligerent rights. 1 

within the territory which neutrals could not regard as a distinct country 
from the United States after its occupation by the national military forces ; 
even though the civil authority had not been there restored. Even while 
under martial law, that law was, as to neutral nations, part of the municipal 
law of the United States; the recognition of the rebel belligerency having 
then terminated as to the district so occupied ; and, therefore, the return 
cargo of the Prussian vessel was subject to the port regulations instituted 
by the military authority; irrespectively of the provisions in the treaty 
with Prussia protecting trade in contraband of war. See opinion of the 
court by Waite, Ch. J. 

1 The application of such maxims as ex turpi causa, ex dolo malo, non 
oritur actio, where aliens are concerned, will depend on this matter of 
political fact. Compare, for illustration, the arguments and decisions in the 
case of Coppell v. Hall, 7 Wall. 542, in the Supreme Court on error from 
the Circuit Court for the Eastern District of Louisiana. 

The distinction would also be important in the case of aliens who might 
have shipped on vessels commissioned as cruisers by the Confederate 



THEORY OF OUR NATIONAL EXISTENCE. 193 

Importance of the Distinction in reference to Aliens. 

It could be urged with propriety that by the Act of 
Congress establishing the Court of Claims, and by the 
various Acts amending that Act, 1 the court is one of special 
and limited jurisdiction, which is further restricted by the 
terms of the " Confiscation Acts," in reference to claims 
under them, and that the court is bound to interpret 
strictly the words defining its jurisdiction. Still, it may 
be supposed that the claims of non-resident aliens against 
the government of the United States, similar to those in 
the cases here cited, should be presented, diplomatically, 
through their own governments, 2 and in some of these it 

authority. Compare Dana's Wheaton, p. 198, editor's note 84, as to debate 
in the House of Lords, May 16, 1861, arising on the President's proclamation 
of April 19, 1861, respecting " any person acting under pretended authority 
of the States in rebellion and molesting vessels of the United States would 
be held amenable to the laws of the Union for the prevention and punish- 
ment of piracy." 12 Stat. U. S. p. 1258, Appendix, No. 4. 

1 See the proviso in sec. 12 of Act of March 3, 1863 ; ante, p. 185, n. 2. The 
Act of July 27, 1868, sec. 2, 15 Stat. U. S. 243, accords the right to proceed 
against the United States through this court, to " aliens who are citizens or 
subjects of any government which accords to citizens of the United States 
the right to prosecute claims against such government in its courts." 
There must be some little question of the correctness of Judge Nott's 
dictum in Harrison's case, 6 Ct. CI. 327, and 8 Ct. CI. 472, that " aliens, non- 
resident, have no right to resort to the courts of a country, and they come 
in only by treaty or through international comity," unless it is understood 
that such international comity is part of the common law. Comp. Wheaton, 
Int. Law, sees. 140, 141. 

2 In Hill's case, 8 Ct. CI. 473, Judge Nott said, — " The claim is not 
within the intent of the statute, and the claimant, if entitled to relief, should 
have sought it through his own government." Art. xii. of the treaty of 
Washington, 17 U. S. Stat. 867, is a limited provision for some of such claims. 
Judge Nott, 9 Ct. CI. 454. In Young v. United States, 7 Otto, 67, it is said 
by Chief Justice Waite, repeating the doctrine of his opinion in United 
States ». Diekelman, — " If his property was captured by the United States, 
under circumstances which entitled him to require its restoration, the law 
of nations gave him the right to prosecute his claim through his own 
government for the loss he sustained. That right was not taken from him 
by the Abandoned and Captured Property Act. It was open to him from 
the first moment of the capture. All that he had to do was to induce his 
government to assume the responsibility of making his claim, and then the 
matter would be ' prosecuted as one nation proceeds against another, not by 
suit in the courts, as matter of right, but by diplomatic representations, or, 

13 



194 THE DISTINCTION IN BELLIGEKENCY. 

Differences in the Position of Aliens. 

ma}^ be material to decide whether the belligerent antag- 
onist to the United States during the war was to be 
regarded by the neutral governments as States, belligerent 
by political capacity, or an insurrectionary de facto belli- 
gerent. 

The position of any non-resident alien would be the 
same under either view ; that is, if, as is here supposed, 
the obligations of neutrality are the same in a civil war as 
in any other. But the distinction would be material in 
the case of aliens residing in the limits of the eleven 
States. 

In the case of aliens resident in the part of the United 
States not affected by the rebellion, it is clear that they 
stood in the same position as the native or naturalized 
citizens of the United States residing in the same place. 
The temporary allegiance due from them, while under the 
territorial jurisdiction of the United States, made them 
equally subject to the municipal law of the place, and 
equally liable to the charge of treason for dealing with the 
belligerent enemy ; whether the enemy recognized was the 
States in their political capacity, or a body of insurgents 
as a temporary de facto belligerent. 1 

The doctrines of public law which have here been ap- 
plied to test the political right of the so-called Confisca- 
tion Acts may also be appealed to in judging of the actual 

if need be, by war.' In such case 'it rests with the sovereign against 
whom the demand is made, to determine for himself what he will do with 
it. He may pay or reject it ; he may submit to arbitration, open his own 
courts to suits, or consent to be tried in the courts of another nation. All 
depends upon himself.' United States v. Diekelman, 92 U. S. 520. This 
was the only right Collie had when his cotton was taken, and the United 
States hare never consented to grant him any other. While the President, 
by his pardon, may restore lost rights, it has never been supposed that in 
such a way he can grant new ones." 

i Habicht v. Alexander's Ex'r, 1 Wood, 412, decision by Judge Duval, 
5th Circuit. The contract for cotton, in Texas, by the plaintiff, being an 
alien resident in New York, held void under the non-intercourse Act. 






THEORY OF OUR NATIONAL EXISTENCE. 195 

Emancipation by War-Power. 

force to be ascribed to the President's Emancipation 
proclamations. 

These have been generally understood as resting on the 
supposed existence of a power, jure belli, in a military com- 
mander, when in an enemy's country, to determine the 
personal status of any natural subjects of that enemy who 
had been held in any state of involuntary service ; and to 
determine it in this sense, that, not only would the doc- 
trine of postliminy have no effect to restore the previous 
status of servitude of those persons who might, during the 
war, be within the actual control of such military com- 
mander ; but such military order should, as municipal law, 
apply to any persons in like condition within the territo- 
rial limits of such enemy's country, without reference to 
the actual extent of military operations, and also entirely 
aside from any existing or prospective change of dominion 
by conquest. 

This was an assumption, as to the existence of a doc- 
trine of international law, for which no proof had been 
given at the time. 1 But, even if the supposed doctrine 

1 It may be supposed that, if any offer of such proof had been known, it 
would have been noticed by Mr. B. R. Curtis, in the pamphlet entitled " Ex- 
ecutive Power," which first appeared in October, 18G2, and which is included 
in the memoir of the author by his son. In this it is said : " The only sup- 
posed source or measure of these vast powers appears to have been desig- 
nated by the President, in his reply to the address of the Chicago clergymen, 
in the following words : ' Understand, I raise no objection against it on legal or 
constitutional grounds ; for, as commander-in-chief of the army and navy, in 
time of war, I suppose I have a right to take any measure which may best sub- 
due the enemy.' This is a clear and frank declaration of the opinion of the 
President respecting the origin and extent of the power he supposes himself 
to possess ; and, so far as I know, no source of these powers, other than the 
authority of commander-in-chief in time of war, has ever been suggested." 
Memoir of B. R. Curtis, &c, vol. ii. 317. As to any proof afterwards of- 
ered I do not know any more considerable than that in "A Letter to Curtis 
in Review of his Pamphlet on the Emancipation Proclamation," New York, 
1863, by C. P. Kirkland, p. 7. " What then, if we were at war with a foreign 
nation immediately on our borders, and that nation had within its bosom 
millions of slaves 1 Can any one versed in the slightest degree in the 



196 THE DISTINCTION IN BELLIGEEENCY. 

A Development in International Law. 

were recognized, it could be applicable only in the case of 
a war between belligerents, being such de jure, or being 
each at war in virtue of independent political power, and 
the assumption of such a power was, as has already been 
argued in connection with the so-called Confiscation Acts, 
inconsistent with the action of the government in treating 
secession as rebellion. 1 

But if international jurisprudence is destined to receive 
any important accession from the precedents thus offered 2 
by the several departments of our government, it may be 
anticipated that its delegates sent to conventions to be 
held in Frankfort, for the exposition and humanization of 

principles of the law of nations, and the laws of war, for a moment doubt 
our right to declare and proclaim freedom to those slaves in case that 
nation did not discontinue that war within a prescribed period ? " No- 
body could dispute the right " to declare and proclaim " that, or any 
thing else. The question is whether any effect follows under the law of 
international warfare. Mr. James Reddie, of Scotland, known as an author 
of several works on public law, of high repute, in an article in the Anthro- 
pological Review (Edinburgh, 1864), vol. ii. p. 292, took the ground that 
there was no such effect. 

1 For this reason there was a contradiction even in Mr. Lincoln's procla- 
mation, Jan. 1, 1863. " By virtue of the power in me vested as commander- 
in-chief of the army and navy of the United States in time of actual rebellion 
against the authority and government of the United States." 

It may be now decent to assume that Mr. Lincoln credited himself with 
the possession of the power claimed by these words, though much of his 
previous action might show that he could not have had any very strong 
conviction on that point. See, especially, an article, " The Emancipation 
Proclamation," by James C. Welling, in the North American Review, Feb- 
ruary, 1880. 

If Mr. Dana's remarks headed " Slavery under Belligerent Occupation," 
in note 169 (8) to § 848 of his edition of Wheaton's Int. Law, are to be under- 
stood as intended to support that claim of power, I do not know of any 
which has been more successful. Mr. Lawrence, in his edition of the same 
work, vol. ii. pp. 597-617, has collected many other opinions supporting his 
own conclusions against the doctrines asserted to maintain the Emancipa- 
tion Proclamations and the Confiscation Acts. 

2 "As the Act was designed to introduce the principle of confiscating 
enemy property seized on land, like that seized on water," &c, Mr. Justice 
Miller, ante, p. 73. " There is, so far as we are aware, no similar legislation 
mentioned in history." Chase; Ch. J., ante, p. 75. 






THEORY OF OUR NATIONAL EXISTENCE. 197 

Relation of Belligerency and Sovereignty. 

international law, "will have been fully instructed to pre- 
sent the doctrine in all its bearings for the enlightenment 
of their European associates, and that in due time it will 
find its way into the ordinary books on the subject. 

It is superfluous to discuss here such inquiries, because, 
as already stated, even if the existence of such powers 
under the rules of international warfare be admitted, the 
circumstances in which they should be applied are not to 
be found where the belligerent enemy recognized is only 
so de facto, — an insurrectionary force, beginning with and 
ending with the duration of military operations. 

On the review of cases in the Supreme Court, arising 
under the so-called Confiscation Acts, in the second chap- 
ter it was inferred that the majority of the court did not 
consider their provisions as punitive municipal law, or as 
derived from power to punish treason and rebellion vested 
in the legislative department by the Constitution, but ac- 
cepted this legislation solely on the doctrine of a war- 
power. 1 

There may possibly, however, be some question as to 
this, and it may perhaps be still argued that this legis-' 
lation is not to be regarded as solely dependent upon the 
war power as above set forth, that is, as applicable in any 
international war, but rests upon a " peculiar position " 2 
occupied by the government in this instance, as claimed by 
Mr. Chief Justice Waite in Lamar v. Browne, 2 Otto, ante, 
p. 78, so that they " could act both as belligerent and sov- 
ereign," and that it was only when so belligerent and 
sovereign that the claim would be made, and therefore not 
in the case of war with a foreign nation. 

In this argument, the powers of a belligerent in inter- 

1 Compare ante, pp. 70, 79. 

2 According to other decisions it is the peculiar character of the prop- 
erty, or heing " hostile property " by its nature which makes the difference. 
See ante, p. 66, 77. 



198 THE DISTINCTION IN BELLIGERENCY. 

Limitations of Belligerent and Sovereign Rights. 

national warfare with parties who are not his subjects are 
supposed to be superadded to the powers of a sovereign 
over his subjects. 1 Many of the provisions in these stat- 
utes could not be derived either from the law of war or 
from the powers granted to the government under the 
Constitution. Provisions in the nature of municipal law 
which could not have been framed under the Constitu- 
tion are incorporated into the law of war, and then ap- 
plied as ordinary legislation. 2 

But neither by addition nor by multiplication can such 
combination of powers exist where two powers are an- 
tagonistic ; so that the occasion for one class of powers 
excludes the occasion for the other. To say that the 
inhabitants of the eleven States were alien enemies at the 
very moment when they were rebels is a contradiction in 
terms. 

The government of the United States might be, as was 
claimed, both belligerent and constitutional sovereign. 
But the only use of belligerent rights compatible with 
sovereignty over the antagonist was that which, while suf- 
ficient as to neutrals, was limited by the disability to accord 
a political status to those known only as a de facto military 

1 " For the enforcement of their constitutional rights against armed in- 
surrection they had all the powers of a most favored belligerent," Waite, 
Ch. J., 2 Otto, 195, ante, p. 78. Compare Field, J., in Tyler v. Defrees, 
ante, p. 73. 

2 " The laws alluded to would seem to be obnoxious not only to the viola- 
tion alike of the principles of international law and of the Constitution of the 
United States, whether we regard them as intended to apply to belligerents 
or to rebels, but they blend all distinctions between the two systems, pro- 
posing to enforce rights founded exclusively, if they exist at all, on war, 
through process applicable only to times of peace. In other words, as, 
while an adverse possession of the seceded States exists, all legislation there 
would be inoperative, these enactments, based on belligerent claims, are 
made to apply after the war-power has ceased, and which, even on the sup- 
position that the territory is thereafter to be regarded as a conquered coun- 
try, and not to revert to its former condition as States of the Union, would 
be the exercise of a severity unknown to modern civilization." Lawrence's 
Wheaton's Int. Law, p. 605, editor's note. 



THEORY OF OUR NATIONAL EXISTENCE. 199 

Belligerency in Civil War. 

power. 1 The belligerent right which was alone adequate 
to support any such legislative powers, as were claimed, 
presupposed the recognition of the eleven States as the an- 
tagonist belligerent, and of their citizens as alien enemies 
to the United States, capable, by their character as such, 
to wage war against the United States, but at the same 
time incapable of occupying the position of rebels as to 
the United States or their government. 2 

In the assertion, so frequently made in the cases arising 
out of the war, that the government possessed the powers 
both of a belligerent and a sovereign, it seems to have 
been supposed that the legislative power of any sovereign 
in respect to any subjects in rebellion is augmented, in 
recognizing their belligerent status, through his own as- 
sumption of the position of a belligerent. 3 The fact, on 

1 By making this distinction, a sufficient answer may be given to the 
strictures offered in the House of Lords, May 16, 1861, by Lords Kingsdown 
and Cranworth, and the Lord Chancellor (Westbury), to the effect that the 
government of the United States ought not to claim the rights of a belliger- 
ent as against foreign commerce, by search and blockade, and yet treat the 
rebels as traitors. Dana's Wheaton Int. Law, editor's note, 84 (p. 198). 

2 There could be no more " war-power" over slavery, in the case of war 
with another nation, in Congress than in the President. Therefore the 
emancipation founded on the forfeiture of the owner's right, as provided by 
sec. 4 of the Act of Congress of August 6, 1861, 12 Stat, U S. 319, was 
equally without support from any doctrine of war powers as previously 
known in international law. 

3 In his opinion in the Amy Warwick, Judge Sprague had asserted the 
existence of a new sort of belligerency, one in which the rights were all for 
one party, and the liabilities all for the other. " They [the rebels] are both 
belligerents and traitors, and subject to the liabilities of both ; while the 
United States sustains the double character of a belligerent and a sovereign, 
and has the rights of both. These rights coexist, and may be exercised at 
pleasure." 2 Sprague's Decisions, 132. This dictum seems to have given 
the key-note for many later judicial voices. The sovereign's rights, as to 
rebel subjects when belligerents, are supposed to be derived from inter- 
national law, though greater than any claimed in a war between two na- 
tions. In the Confiscation cases (Fifth Circuit, Slidell's land), 1 Wood, 229, 
Judge Bradley said : " A belligerent has a right to take such course and 
impose such conditions, with regard to the confiscation of enemies' property, 
as it sees fit. The rules which it prescribes are not to be questioned by any 



200 THE DISTINCTION IN BELLIGERENCY. 

The Argument from Necessity. 

the contrary, is that, whatever powers such sovereign may 
have, as belligerent, in respect to such subjects, they are 
inferior to those he already has as sovereign. The bel- 
ligerency of the rebel force is a diminution, for the time, 
of his legislative power, to which he is compelled to sub- 
mit. The power which a sovereign gains, under these 
circumstances, is gained in respect to neutrals, in situa- 
tions to which his sovereignty cannot extend in time of 
peace. 

If it be once conceded that the government of the 
United States occupied the position of sovereign in re- 
spect to the inhabitants of the eleven States, all the pecu- 
liar reasoning as to " peculiar property " and " peculiar 
situation " is superfluous. The difficulty has been in try- 
ing to reconcile pretensions to powers, like those claimed 
in the Confiscation Acts and the Emancipation Proclama- 
tions, with the assumed continuance of the eleven States 
as political personalities. 

It may have been commonly argued that the confisca- 
tion legislation of Congress, and the Emancipation by 
proclamation of the Executive, were essential measures for 
suppressing the rebellion. This is an argument which 
assumes the right and duty of the government to resist 
secession as rebellion ; an assumption which, whether well 
founded or not, must now be accepted because, as politi- 
cal fact, secession has been resisted as rebellion. But the 

code except the law of nations and its own Constitution. The rights of a 
government against its own citizens in insurrection are not less, but are 
rather greater, than those it may exercise towards a foreign enemy. But, 
in either case, the enemies' property may be confiscated simply as such, if 
the government so determine." And in another passage, — " It may be 
very true, and I am inclined to think it is true, that the constitutional pro- 
vision which declares that no attainder of treason shall work corruption of 
blood or forfeiture, except during the life of the person attainted, does not 
apply to the confiscation of enemies' property, even though those enemies be 
rebels against the government and guilty of treason." lb. p. 233. Ln this 
logical fallacy, international, municipal, and constitutional law are involved 
in inextricable confusion. 



THEORY OF OUR NATIONAL EXISTENCE. 201 

Legislative Power arising from State-Lapse. 

general position of necessity is one which no government 
existing under law, — a written constitution in this case, 
— has a right to assume. A necessity for violating the 
Constitution in order to maintain the Constitution is con- 
tradiction. 1 And the argument is not bettered in the least 
by calling it the necessity for preserving " the integrity of 
the Union," or " the life of the nation," or " the national 
existence." If the limitations imposed upon a government 
holding delegated powers are inconsistent with attaining 
these great objects, they are not the objects for which such 
government was instituted, and the necessity cannot be 
supposed. 2 

But under that view of the effect of the State ordi- 
nances of secession, supported to the extent of civil war, 
which I have presented in beginning this chapter, the 
municipal laws of the eleven States continued in force 
only as laws deriving their validity from the sovereign 
represented exclusively by Congress, and all rights of per- 
sons and property, real or personal, existed therein subject 
to the legislative power of Congress, limited only by the 
provisions in the Constitution of the United States ; as 
the powers of the pre-existing State governments had been 
limited by the State constitutions ; and, as to subjects of 
foreign countries, by the law of nations. There was am- 
ple room for legislation, as efficacious as any contained in 
the Confiscation Acts, for the purpose of suppressing and 
punishing rebellion. 

This legislative power, thus ascribed to Congress under 
the theory of State-lapse, is entirely distinct from any 
claim of a " war-power " legislation, such as was advanced 

1 Which is answer enough to all such reasoning as that of Mr. Justice 
Miller in Tyler v. Defrees, ante, p. 72. 

2 As in Mr. Lincoln's arguments for military emancipation, ante, p. 195 n. 
The argument for war-power confiscation acts, and war-power emancipa- 
tion, is equivalent to saying that, in order to suppress a rebellion it is proper 
to resort to measures which declare that it is no rebellion at all. 



202 THE DISTINCTION IN BELLIGERENCY. 

Confiscation and Emancipation as in a Territory. 

to support the Confiscation Acts, and such as might with 
equal consistency have been claimed for Congress in 
reference to the emancipation of the slaves in the States 
affected by the rebellion. 1 

This legislation of Congress, being simply in the nature 
of ordinary municipal statute law for Territories of the 
United States, could be so framed as to apply to any or all 
property, real or personal, and to any or all persons found 
in the districts to which such legislation should be di- 
rected ; to resident aliens, as well as to others. And there 
would be no room for questions with neutral nations as to . 
the rights of their subjects being such resident aliens in 
these districts, such as might arise in the case of aliens, 
subjects of neutral nations, being within the territory of 
one nation, during a war, or upon a conquest, as against 
the belligerent or political rights of another, and might 
arise if the eleven States were to be considered as con- 
quered in an international war. 

Congress therefore, under this view, had the power 
over the status of all natural persons within the eleven 
lapsed States, as in the case of an organized Territory of 
the United States, and any legislation by proclamation on 
the part of the Executive was usurpation of a function 

1 As was, I believe, claimed by Mr. Sumner. Any legislative power aris- 
ing from an existing belligerent status is obviously a different matter from any 
power vested in Congress, by the Constitution, to create a state of belliger- 
ency, or to recognize a state of belligerency, either in a civil war or a pub- 
lic international war, which was questioned in the Prize Cases, ante, p. 50. 
The fact that it takes two parties to make a war, as it takes two to make 
a bargain, creates a necessary limitation, in two opposite directions, on any 
power of Congress to " declare war." It is clear that no legislation of one 
party can institute a war if there is no other party who will fight ; and, also, 
that if there is a party who is able and willing and does invade the country, 
there will be war, though Congress may have said nothing about it. The 
power specified in the Constitution to " declare war, grant letters of marque 
and reprisal, and to make captures on land and water," Const. Art. 1, § 8, 
could only have relation to war, &c, as between nations. A constitutional 
arrangement for declaring a civil war is as contradictory as superfluous. 



THEORY OF OUR NATIONAL EXISTENCE. 203 

Treason, in its Relation to Belligerency. 

vested in another branch of the government ; indepen- 
dently of the facts that there was no foundation, such as 
was claimed for the power, in the law of international 
war, and that, if such could be found, there was no such 
international war in this instance as could give occasion 
for its application. 1 

A doubt as to the person recognized as belligerent, i. e., 
whether a political person capable of carrying on war, or 
a body of men risen in arms without political status, must \ 
necessarily have involved uncertainty on the question 
whether any private persons, being citizens or residents of 
one of the eleven States had been chargeable with treason. 2 

According to the view taken in this chapter of the politi- 
cal consequences of the State ordinances of secession and 
civil war, there could be no recognition of the eleven 
States as the belligerent party, and hence, there could 
have been no necessary exemption in the case of their \ 
citizens, as individuals, from the charge of treason against 
their only sovereign, — the United (other) States. 

At the same time, it may be admitted that though the 
recognition of belligerency should be thus limited in legal 
effect, it would still be just, for the sovereign represented 

1 The question of limitation on the power of Congress over a Territory, 
in respect to slavery, is one under the written Constitution as law for the 
organized government. This is a distinct matter from the question of the 
investiture of that sovereign power from which that written Constitution 
derives its authority, and which is the topic herein considered. So also the 
questions whether, when the United States are engaged in any war, the 
guarantees of the Bill of Rights for the liberty of the private citizen may 
be disregarded throughout the country by the military authority ; whether 
the writ of habeas corpus is suspended, ipso facto, by the existence of war ; or, 
whether, if to be suspended otherwise, its suspension rests with the Presi- 
dent, as head of the army, or with Congress, are questions under the written 
Constitution as law, and might equally arise under any theory of the ulti- 
mate possession of sovereignty. Compare B. R. Curtis, pamphlet on Ex- 
ecutive Power, Memoirs, &c. ; Habeas Corpus and Martial Law, by Joel 
Parker, North Am. Rev. vol. 3, p. 471 ; Lawrence's Wheaton's Int. Law, 
editor's note, 170. 

2 Compare ante, pp. 60, et seq. 



204 THE DISTINCTION IN BELLIGERENCY. 

Popular View of Treason. 

by the actually prevailing government, in determining how 
far the right to punish individual citizens should be exer- 
cised, to consider the degree in which the populations 
engaged in insurrection or rebellion had approached the 
status of an actual political power, as deriving legitimacy 
from force alone. 1 

Bat that inquiry could not be entertained by judicial 
tribunals deciding guilt or innocence of individual citizens 
as a question of law. It is a political faculty, which could 
only be exercised by the government, either through the 
executive or the legislative function. 2 

It has already been noticed that no judicial exposition 
of the law of treason applicable to the circumstances of 
the rebellion has hitherto appeared ; 3 and it is now almost 
impossible that any case giving the opportunity for such 
an exposition should arise. The question of treason or no 
treason has been practically left to the vaguest standards 
of popular sentiment. 

On this question of treason, as against the United States, 
or the government, it seems to have been popularly held 

1 In many of the judicial opinions deliyered in the cases which have 
herein been cited, the dimensions, so to speak, of the rebellion have been 
dwelt upon as adding to the crime of individuals on the one hand, and to 
the just rights of the government on the other. This sort of reasoning, 
which is quite in accord with popular sentiment, shows a misapprehension 
of the case ; it really being one not simply under a municipal law. The 
greater the dimensions of civil war, the more it acquires the character of 
international war ; the bigger a rebellion, which is an unsuccessful revolu- 
tion, the more it approaches a revolution, which is a successful rebellion ; 
and the less the crime in the individual citizen. 

Bella per Emathios plus quam civilia campos, 
Jusque datum sceleri canimus. 

Lucan, Pharsalia, Lib. L, 1. 1, 2. 

2 Const. Art. ii. § 2; 1. "He [the President] shall have power to grant 
reprieves and pardons for offences against the United States, except in 
cases of impeachment." In United States v. Klein, ante, p. 75, the Supreme 
Court maintained the power as against Congress. 

3 Ante, p. 80. 



THEORY OF OUR NATIONAL EXISTENCE. 205 

Popular View of Treason and Belligerency. 

that the crime of the State, as political person, is also the 
crime of its citizens, individually ; or of those, at leasts 
who could be proved to have voluntarily engaged in the 
State's act of levying war against the United States, or in 
giving aid and comfort to such State as a belligerent. It 
has been thought perfectly consistent to hold "the State 
responsible, either under the laws of public war, as con- 
quered nation, or as having, under the public municipal 
law (i. e., the Constitution), forfeited, by rebellion as 
political person, its participation in representation, &c, 
and, at the same time, to regard the citizens, acting in 
obedience to or by the authority of such State, as indi- 
vidually chargeable with treason, when the war had ended 
by the conquest of such State. 1 This is sustaining some- 
thing in the nature of contradiction in terms. The State, 
as political person, was what it was in virtue of its political 
capacity to command the obedience of its citizens. It 
could not, as State, have been belligerent, except by having 
this capacity in the relations which constitute war. If it 
had this capacity, the citizen had not freedom of choice, 
and cannot be accountable in his own person. This is not 
so much doctrine of law, as it is only statement of axioms 
underlying all legal relations. 

But, in the case of belligerency attributed to a merely 
insurrectionary power, the question of treason of citizens 
is a legal one, properly so called ; while the extension of 
amnesty to individuals — if determined by the degree in 

1 When this had been very forcibly pointed out in an article on "American 
Secession and State Rights," by an English contributor in the (London) Law 
Magazine and Law Review for August, 1863, it was further illustrated in 
letters written in answer by Judge Isaac S. Redfield, and Mr. George S. 
Hillard, published in the same magazine in November, 1863, and February, 
1864, and reprinted in the Monthly Law Reporter (Boston) for August, 1864, 
n. s. vol. xxvi. p. 70, 361, each containing a defence of the American posi- 
tion from the standpoint of Story and Webster. Another illustration may 
be found in the same volume, p. 537, in the article entitled " The Legal 
Status of the Rebel States before and after their Conquest." 



206 THE DISTINCTION EST BELLIGERENCY. 

Failure of Illustrations from Feudal Law. 

which the recognized military force had acquired, as far as 
these individuals were concerned, the powers of a politi- 
cal state — is a political question. 1 

Under the feudal system, the vassals of a feudatory in 
rebellion against his lord-paramount would not have been 
exculpated from the charge of treason against the latter 
by their fealty to the former. It would have been held 
that, by breach of his own allegiance, the feudatory lost 
his claim, as the representative of his superior, of fealty 
from his vassals, and that these then became the immediate 
vassals of the lord-paramount. But there is no similar 
relation between the several States, the corporate political 
peoples of the several States, or their State governments 
on the one hand, and the general government on the 
other ; nor any such as between the individual States on 
the one hand, and themselves united on the other ; 2 and 

1 See the history of the trials for piracy, during the war, of persons on 
the rebel cruisers. Dana's Wheaton, Int. Law, editor's note, 84, Rebels as 
Pirates. Lawrence's Wheaton Int. Law, editor's note, 79. 

2 Mr. J. P. Bishop, author of treatises on Marriage and Divorce, and on 
Criminal Law, published in 1865 a pamphlet, " Secession and Slavery," &c, 
in which it is said, p. 27 : " These States are, as they always were, bound by 
law to render allegiance to the United States; it is a fact of the law that they 
are so bound." Compare, ante, p. 145, note, a citation from Brownson and 
remark. In the article in the Monthly Law Reporter, " The Legal Status 
of the Rebel States," &c, already referred to, occurs this passage, — "The 
people are by our Constitution clothed with the power of self-government ; it 
is their franchise. If this franchise, this right of governing, belonged to a 
single person, called a prince or duke, and he had rebelled against his suze- 
rain, can there be any doubt that he would have forfeited to his superior his 
franchise, his right of government, by this act of disloyalty, when conquered 
by his suzerain ? History is full of such forfeitures. The people here 
stand in the place of the duke, and shall they not forfeit their franchise, 
their right to govern themselves, by a like act of disloyalty and rebellion 1 
It would be strange if such were not the law." 

In the case supposed, the forfeiture is entirely independent of any ques- 
tion of conquest. In fact, there is no conquest when the suzerain establishes 
his authority. In this curious assertion that " the people stand in the place 
of the duke," it is not explained who it is who stands in the place of the 
suzerain. Probably the author had the fetish Constitution before his mind, 
as such suzerain. 



THEORY OF OUR NATIONAL EXISTENCE. 207 

Original Failure to observe the Distinction. 

the doctrine of the Supreme Court, as to the continuation 
of their State existence, if it means any thing, and the 
attribution of belligerency to the States, suppose them to 
have continued in the exercise of all their political capacity 
in respect to their populations. 

The feudal lord-paramount was an actual human being, 
individually and physically distinct from his vassals. But 
the government of the United States is no such person. 
Presidents, Congress, the judiciary, as men, have no sov- 
ereignty, and, as a whole, the government cannot exist 
except as the States exist first. The human beings hold- 
ing sovereignty are the politically organized people, cor- 
porately organized as States United. 1 

The common idea may still be that the eleven States 
could be, and therefore should be, and were the recognized 
belligerent. 2 This was the view, unquestionably, which 
the British government, in perfect good faith undoubtedly, 
took in the Queen's proclamation of neutrality, and this 
also was accepted by other countries. 

But strangers may be at least excused in seeing* us as 
we see ourselves. If we propose to be true to ourselves, 
we must, in our domestic political law, insist on the dis- 
tinction ; or, otherwise, wallow in the chaos of contradic- 
tions in which the Supreme Court is floundering like 
Milton's Satan on his way to the terrestial paradise. 

The judiciary has been forced to these inconsistencies 
by the original failure on its own part, as on the part of 
the executive and of Congress, to make the distinction, as 

1 Ante, p. 140. 

2 This view has even got formal expression in treatises. Dr. Woolsey, 
in Political Science, ii. p. 250, says of the general government : " It has 
thus, if there should be serious resistance to the laws or any movement of 
violence in which a State is concerned, the power to treat such State as in a 
condition of war, to close its harbors by a blockading force, to stop commu- 
nications with it by the post-office, or in any other way, to pour troops into 
its territory." 



208 THE DISTINCTION IN BELLIGERENCY. 

The Southern View of the Question. 

already shown. Mr. Lincoln might possibly have modi- 
fied his view as the question of reconstruction proceeded, 
from having, perhaps, originally had a somewhat differ- 
ent view of the Union from that ordinarily accepted. 
President Johnson, whose reconstruction .policy was essen- 
tially the same as Mr. Lincoln's, was supposed to be of 
that school which, accepting the several sovereignty of the 
States as the primal fact in the genesis of the Union, ac- 
cepts, about half way, its logical consequences. Congress 
had blundered in the same way in its Confiscation Acts, 
and, so far as it accepted the doctrine of conquest in the 
Reconstruction measures, followed Mr. Johnson's lead in 
the view taken of the action of the eleven Southern States, 
though it may be a question, as between them, who had 
the best claim to consistency. 

The joint committee of the first session of the 39th 
Congress, commonly known as the Committee on Recon- 
struction, had been appointed under direction, Dec. 13, 
1865, " to inquire into the condition of the States which 
formed the so-called Confederate States of America, and 
report whether they, or any of them, are entitled to be 
represented in either House of Congress. 

In the majority report of this committee, from which 
some passages have already been herein cited, it is said re- 
specting the state of opinion at the South, — 

" Professing no repentance, glorying, apparently, in the crime 
they had committed, avowing still, as the uncontradicted testimony 
of Mr. Stephens and many others proves, an adherence to the per- 
nicious doctrine of secession, and declaring that they yielded only 
to necessity, they," &c. 

And further on in the same report, — 

" While there is scarcely any hope or desire among leading men 
to renew the attempt at secession at any future time, there is still, 
according to a large number of witnesses, including A. H- Stephens, 
who may be regarded as good authority on that point, a generally 



THEORY OF OUR NATIONAL EXISTENCE. 209 

A Practical Test. 

prevailing opinion which defends the legal right of secession, and 
upholds the doctrine that the first allegiance of the people is due to 
the State and not to the United States. This belief evidently pre- 
vails among leading and prominent men, as well as among the 
masses, everywhere, except in some of the northern counties of 
Alabama, and the eastern counties of Tennessee." Reports, 1st 
Sess. 39th Cong. Vol. 2, pp. xvi., xvii. 

Surely any foreign observer must smile at the innocent 
simplicity of the committee in reporting this, as an unex- 
pected phenomenon, or dreaming that anybody could pos- 
sibly have believed them, if they had reported the Southern 
people as entertaining an opposite view of the political 
right of the question ! 

The South, being defeated on the " wager of battle," 
simply left the victorious party to carry out whatever 
political doctrine they might have been sustaining. If it 
was material for Congress to learn, at that time, anybody's 
views about the doctrine of secession, it should have 
appointed a committee to proceed through the Northern 
States asking this question of each resident inhabitant, 
man, woman, or child, — 

In the event that the State of which you may be an 
inhabitant, acting with ten bordering and contiguous 
States, should be considered by the government of the 
United States as at war 1 with that government, or with 
" the United States," as represented by that government, 
would you, acting conscientiously in view of your alle- 
giance as citizen, adhere to and give aid and comfort to the 
general government, or would you adhere to and give aid 
and comfort to your State ? 

How would such a question addressed to each citizen, 
man-citizen or woman-citizen, of the Northern States, at 

1 At tear ; that is with all those consequences to the inhabitants of your 
State which follow from the view of belligerency sustained by the Supreme 
Court in the Prize cases and the Confiscation cases. 

14 



210 THE DISTINCTION IN BELLIGERENCY. 

A Question of Personal Allegiance. 

the date when the Reconstruction committee were making 
up their majority and minority reports, have been an- 
swered ? 

It is a question of a sort supposed to be always promptly 
answerable, and one which none who undertake to govern 
a country ought to be afraid to ask. 1 

1 The persons whose answer on this question would be material are not 
only those who might have the occasion to vote on a question of secession 
by having the elective franchise. The appeal contemplated is not made to 
any " people " as the corporate source of political power ; it is to all who, 
because they must individually owe allegiance to some sovereign, must be 
capable of being charged for treason to that sovereign, whoever that may 
be. And this applies without reference to distinctions of sex, age, physical 
strength, wealth, education, &c. The influence of woman has always been 
a marked characteristic in civil wars, and, if correctly reported, it was a 
strong element at the South in favor of the secession movement. 



THEORY OF OUR NATIONAL EXISTENCE. 211 

The Political Question in the Supreme Court. 



CHAPTER VI. 

The Subject of the last Chapter continued. — The political Action 
of the Government in Reconstruction examined as a Recogni- 
tion of the Effect here ascribed to the Secession Ordinances. 

It is hardly necessary to search the opinions delivered 
by the several justices of the Supreme Court in the cases 
cited in the first and second chapters for passages illustrat- 
ing their general recognition that the question of the 
status of the eleven States was in its nature a political 
question and, for that reason, not such a question as could 
be determined by the court by being comprehended in the 
description — "all cases arising under the Constitution," 
— in the clause describing the jurisdiction of the Supreme 
Court. 1 

In the State of Georgia v. Stanton, 6 Wall. 50, argued 
December Term, 1867, a bill in equity had been filed, 
April 15, 1867, in the name of the State to enjoin the 
Secretary of War, and other officers representing the 
executive authority of the United States, " from carrying 
into execution certain Acts of Congress, inasmuch as such 
execution would annul and totally abolish the existing 
State government of Georgia, and establish another and 

1 Compare ante, pp. 17, 19. Abbott's National Digest, V. (published 1877), 
p. 446, has, under States, Reconstruction, only this : " The constitutionality 
and effect of various Acts of Congress for the Reconstruction of the former 
seceded States, elaborately examined and considered, 1867. The Recon- 
struction Acts, 12 Op. of Att.-Gen. 141 ; 1867, The Reconstruction Acts, Id. 
182." From which it would appear that all that a diligent lawyer can find 
on this important subject is to be sought in the opinions of a member of the 
Executive Department of the government, the Attorney-General (Henry 
Stanbery), on certain questions of interpretation of the Acts of Congress, as 
to which the " military commanders " had asked for instruction. 



212 ATTITUDE OF THE JUDICIAHY. 

Georgia v. Stanton. 

different one in its place ; in other words, would overthrow 
and destroy the corporate existence of the State by de- 
priving it of all the means and instrumentalities whereby 
its existence might, and otherwise would, be maintained." 
Mr. Justice Nelson, in delivering the opinion of the 
court as to this, said, ib. p. 76 : — 

" This is the substance of the complaint and of the relief prayed 
for. The bill, it is true, sets out in detail the different and sub- 
stantial changes in the structure and organization of the existing 
government, as contemplated in these Acts of Congress, which, it is 
charged, if carried into effect by the defendants, will work this de- 
struction. But they are grievances because they necessarily and 
inevitably tend to the overthrow of the State as an organized po- 
litical body." 1 

It would appear that in this statement the court went 
even beyond the allegations in the bill itself, which com- 
plained of the prospective effect on the government of 
the State, whereas, here, the court seems to acknowledge 
that the execution of the Acts of Congress was incom- 
patible with the political nature of a State of the United 
States. 

The conclusion of the court, ib. p. 77, was : — 

" That these matters, both as stated in the body of the bill and 
in the prayers for relief, call for the judgment of the court upon 
political questions, and upon rights, not of persons or property, but of 
a political character, will hardly be denied. For the rights, for the 
protection of which our authority is invoked, are the rights of sov- 

1 Chief Justice Chase was alone in expressing dissent from the opinion 
delivered for the court by Mr. Justice Nelson. He said : " Without being able 
to yield my assent to the grounds stated in the opinion just read for the dis- 
missal of the complainant's bill, I concur fully in the conclusion that the 
case made by the bill is one of which this court has no jurisdiction." It may 
easily be conceived that the Chief Justice, with such ideas as to State-contin- 
uance as he afterwards expressed in Texas v. White, ante, pp. 10, 14, would 
not be likely to agree that there was any possible " overthrow of the State 
as an organized political body," whatever might be the action of the general 
government in respect to the territory and population. 



THEORY OF OUR NATIONAL EXISTENCE. 213 

The Position taken in the Supreme Court. 

ereignty, of political jurisdiction, of government, of corporate exis- 
tence as a State with all its constitutional powers and privileges. . . . 
Having arrived at the conclusion that the court, for the reasons 
above stated, possesses no jurisdiction over the subject-matter pre- 
sented in the bill for relief," &C. 1 

This case of Georgia v. Stanton differed from the cases 
which have been cited in the first and second chapters in 
this, — that the rights for the protection of which the au- 
thority of the court was invoked in those cases were rights 
of persons or of property, as referred to by Mr. Justice 
Nelson in his opinion in this case. By entertaining juris- 
diction in those cases, the court necessarily accepted any 
political facts upon which such rights might depend ; and 
so, if it did not decide the political question, it furnished 
evidence of what was the political fact which had been 
established by the action of " the" political department," 
wherever that department might be found. 

All, then, that is material to learn is, What did the court 
accept as the political fact ? As a court, the judges had 
declared their acceptance of the political transaction known 
as Reconstruction as being something for which they, as a 
court, had no judicial responsibility. It may, for the 
present purpose at least, be assumed that the Supreme 
Court did not accept it as successful usurpation, or as a 
revolutionary change, but as consistent with that investi- 
ture of sovereignty from which the written Constitution 
had derived its authority for the members of the court as 
well as for others, and that this was to, whether the court 
held that " the political department " had treated the 
eleven States as always States, each being on an equality 

1 From the language of the same judge in Re Egan, ante, p. 44, note, it 
appears that he had an opinion on the political question of State-existence 
which he could express in a case where the rights of persons depended on 
such question. Compare, also, Grier, J., with Swayne and Miller, JJ., in 
Texas v. White, ante, pp. 17, 18, and Swayne, J., in White v. Hart, ante, 
p. 19. 



214 THE QUESTION NOT JUDICIAL. 

The Judicial Conception of a State. 

with an j one of the other States, or had treated them as 
something else. 1 

Several of the justices, a majority of the court prob- 
ably, have indeed indicated their views on this alternative 
by saying in very positive terms that these States were 
always and must be always States. Passages may be cited 
from opinions delivered in the cases already described 
which may be thought to indicate that, in recognizing the 
existence of a power in Congress adequate to sustain its 
action in Reconstruction, the court has ascribed it to the 
constitutional guaranty of a republican government, 2 and 
that this, of itself, is an acknowledgment of the continuity 
of State existence. But those allusions to the guaranty 
appear to be quite as applicable to the case of the organ- 
ization of territory which has never been under a State 
government, and are therefore not inconsistent with the 
recognition, in this case of reconstruction, of either the 
theory of conquest or of State-lapse. 

So far as the Supreme Court has designated these States 
as the recipient of the guaranty, it has done so either — 

1. In that sense of the word State which Chief Justice 
Chase, in Texas v. White, called " the primary conception 
of a people or community," — "the people, in whatever 
territory dwelling, either temporarily or permanently, and 
whether organized under a regular government or united 
by looser and less definite relations," 3 ante, pp. 10, 11 ; or 
else — 

1 The court had no political doctrine to accept from the " political depart- 
ment," for Congress had merely offered to it a fact, without describing its 
political nature. 

2 Contained in Sect. 4 of Art. IV. " The United States shall guarantee 
to every State in this Union a Republican Eorm of Government, and shall 
protect each of them against Invasion; and, on the application of the Legisla- 
ture, or of the Executive (when the Legislature cannot be convened), against 
domestic Violence." 

3 Which was, apparently, also Mr. Justice Bradley's idea in saying : 
" Whether the community of people constituting the several States remained 



THEORY OF OUR NATIONAL EXISTENCE. 215 

The Question of State Existence. 

2. As Mr. Justice Swayne, in White v. Hart, described 
the State of Georgia, that is, as a political personality 
owing " constitutional duties and obligations " to some- 
body, and liable to such "disabilities and penalties" as 
might be " visited upon her " by somebody " for her share 
of the guilt of the Rebellion," and of receiving at last " con- 
donation by the general Government." (Ante, pp. 18, 19.) 

The first of these descriptions, as applied to the eleven 
States, is rather more in harmony with a doctrine of 
State-lapse, or State-suicide, than with any other. 

It being assumed that no member of the Supreme Court 
has taken the ground that, at some period between the end 
of the war and the date of these cases, a revolution had 
occurred, changing entirely the previous relations between 
the States and the general Government and, simultaneously, 
the allegiance of each inhabitant of the United States, it 
seems to me that Mr. Justice Swayne's language, as applied 
to the eleven States alone, is in harmony with Reconstruc- 
tion on the basis of conquest, and only on that. 

But if the rights of persons and of property involved in 
the cases in which this is affirmed could have been decided 
on the merits in the same manner if the court had held 
that these States had been treated as Territories of the 
United States, the language of a judicial opinion is of very 
little value as evidence of the actual political fact, in com- 
parison with the measures themselves which were enforced 
by "the political department." x 

Besides, independently of the actual failure of the ju- 
dicial department to settle this question, it results from 
the very nature of the judicial function, as limited to the 
determination of questions under the written Constitution 
as law, 2 that it is as open now as it ever was to each citi- 

States during the insurrection is of no consequence to the argument," — in 
Keith v. Clark, ante, p. 33. 

1 Compare ante, p. 150. 2 Ante, p. 5. 



216 POLITICAL NATURE OF THE QUESTION. 

Action of the Thirty-Ninth Congress. 



zen of the United States, and as it must forever be to all 
foreign observers, to discuss the real question of political 
fact, that is, -whether the prevailing belligerent, represented 
by the general Government, had accepted the existence of 
the eleven States as States of the United States, co-ordinate 
members of the Union, or, on the contrary, had accepted 
them only as geographical portions of the domain of the 
United States, and as being States only as land and inhabi- 
tants may be called such, apart from any possession of those 
political rights and powers which the States ordinarily ex- 
ercise. 

The political action which it is most important to notice 
as involving some determinative view of our national ex- 
istence is that which is ordinarily termed the Reconstruc- 
tion legislation of the thirty-ninth Congress at its second 
session, contained in the Act of March 2, 1867, entitled, 
" An Act for the more Efficient Government of the Rebel 
States," with the supplementary Acts, as they have been 
already in part described, ante, pp. 40, 41. 

There were other measures of a legislative nature, in- 
cluding in this description legislation embodied in the fOrni 
of constitutional amendment as well as ordinary statute 
law, adopted before or after this particular statute, 1 which 

1 Most of this legislation may he said to have grown out of the policy 
adopted hy the executive department in reference to the slave population of 
the States of the Confederacy ; as, particularly, "A Bill to estahlish a Bureau 
for the Belief of Freedmen and Refugees/' passed March 3, 1865, 13 U. S. 
Stat. 507, and " An Act to protect all Persons in the United States in their 
Civil Bights and furnish the Means of their Vindication," passed April 9, 
1866, 14 U. S. Stat. p. 27, commonly called the Civil Bights Bill. This bill 
might seem to have been passed by Congress in anticipation of powers to be 
derived from the Fourteenth Amendment, which, however, had not then even 
been proposed by Congress for adoption. Some of the supporters of the 
bill, however, appear to have based the statutory power on the clause in 
Art. iv., Sect. 2, of the Constitution : " The citizens of each State shall be 
entitled to all privileges and immunities of citizens in the several States." 
See Mr. Bingham's speech, Cong. Globe, 1st Sess. 39th Cong. p. 158; Wil- 
son's History of the Reconstruction Measures, &c, p. 52. 



THEORY OP OUR NATIONAL EXISTENCE. 217 

Relation of the Amendments to the States. 

were calculated to affect permanently the ordinary powers 
and jurisdiction of the several States whose position at the 
close of the war was in question. These measures were 
considered by the persons then administering the govern- 
ment of the United States to be politically necessary in 
view of the future exercise by the States of the rebel Con- 
federacy of the powers held, or to be held, by each and 
every State of the Union. In a sense, therefore, they 
might be considered part of the general system of Recon- 
struction, as applied to these States particularly. But, as 
they were not limited in their legislative effect to the States 
compromised by the Rebellion, but affected the separate 
powers and jurisdiction of every other State as well, they 
must be distinguished from measures confined in their 
effect solely to the determination of the political position 
of these particular States. 

Among these measures were Articles xiii., xiv., and xv., 
of Amendments to the Constitution. 1 These amendments, 

1 On the supposition that the eleven States were properly included in the 
whole number of States, the consent of some of them was necessary to 
secure the requisite proportion of three fourths. Art. xiii., proposed Feb. 1, 
1865, ratification declared Dec. 18, 1865, 13 U. S. Stat. 774, Virginia, Louisi- 
ana, Arkansas, South Carolina, Alabama, North Carolina, Georgia, and 
Tennessee being computed in the ratifying three fourths, at which date none 
of these States were represented in Congress, all, except Tennessee, being 
then under governments declared to have been illegal by the Reconstruction 
Act of March 2, 1867, and its supplements ; ante, p. 40. Art. xiv., proposed 
June 16, 1866, ratification declared July 28, 1868, 15 U. S. Stat. 708. Among 
the States computed in the ratifying three fourths were those whose adop- 
tion of this article had been declared a condition of admission to representa- 
tion by " An Act to admit the States of North Carolina, South Carolina, 
Louisiana, Georgia, Alabama, and Florida to Representation in Congress," 
passed June 25, 1868, 15 U. S. Stat. 73. Arkansas was also counted as 
ratifying, whose admission to representation in Congress had been declared 
to be due to her antecedent ratification of this amendment, by " An Act to 
admit the State of Arkansas to Representation in Congress," passed June 
22, 1868, 15 U. S. Stat. 72. Art. xv., proposed Feb. 27, 1869, ratification de- 
clared March 30, 1870, 16 U. S. Stat. 1131. Among the States computed 
in the ratifying three fourths were those whose ratification of this amend- 
ment had been declared a condition of admission to representation by Sect. 6 



218 THE RECONSTRUCTION LEGISLATION. 

Position of Tennessee. 

being adopted, have equal effect as law throughout all 
the States and Territories of the United States. But 
some index of the political position of the States com- 
promised by the Rebellion is given by the political action 
of the Government when calculating the total number of 
States of which the consent of three fourths was necessary 
for the adoption of any amendment, as well as by its 
accepting the determination of any of these States in esti- 
mating the required three fourths. 

Already, some months before this second session of the 
Thirty-ninth Congress, a new Constitution for the State 
of Tennessee 1 had been adopted by the action of the 
political people of the State as the same had been con- 

of " An Act authorizing the Submission of the Constitutions of Virginia, 
Mississippi, and Texas to a Vote of the People, and authorizing the Election 
of State Officers provided by said Constitutions, and Members of Congress," 
passed April 10, 1869, 16 U. S. Stat. 1131. 

i In a resolution of Congress, Eeb. 18, 1865, 13 U. S. Stat. p. 567, Ten- 
nessee was named as one of the States which, having " rebelled against the 
government of the United States, . . . were in such condition " that no 
valid election for electors of President could be had. 

" The joint Resolution restoring Tennessee to her Relations to the Union," 
14 U. S. Stat. p. 36-4, reads : " Whereas, in the year eighteen hundred and sixty- 
one, the government of the State of Tennessee was seized upon and taken 
possession of by persons in hostility to the United States, and the inhabitants 
of said State, in pursuance of an Act of Congress, were declared to be in a 
state of insurrection against the United States ; and whereas said State 
government can only be restored to its former political relations in the Union 
by the consent of the law-making power of the United States ; and whereas 
the people of said State did, on the twenty-second of February, eighteen 
hundred and sixty-five, by a large popular vote,, adopt and ratify a Consti- 
tution of government whereby slavery was abolished, and all ordinances and 
laws of secession, and debts contracted under the same were declared void; 
and whereas, a State government has been organized under said Constitu- 
tion which has ratified the amendment to the Constitution of the United 
States abolishing slavery, also the amendment proposed by the Thirty -ninth 
Congress, and has done other acts proclaiming and denoting loyalty : There- 
fore — 

" Be it resolved by the Senate and House of Representatives of the United 
States of America in Congress assembled, That the State of Tennessee is 
hereby restored to her former proper, practical relations to the Union, and is 
again entitled to be represented by senators and representatives in Congress. 
Approved July 24, 1866." 



THEORY OF OUR NATIONAL EXISTENCE. 219 

History of the Act of March 2, 1867. 

stituted under its previously existing laws, a new State 
government under that Constitution had been elected, 
and senators and representatives from the State had been 
received in Congress. 

The admission of the State of Tennessee may be called 
one of the measures of Reconstruction. But it would be 
difficult to gather from the history of the State daring the 
war and before this admission, or from the political facts 
recited in the resolution of Congress declaring its recon- 
struction, restoration, recognition, or whatever else it may 
be called, any political doctrine of general application. 1 

As the case of this State presented differences more or 
less essential, as compared with the general circumstances 
of the other States of the Confederacy, a further notice of 
its particular relations with the general Government may 
be here waived, in proceeding with the examination of the 
general inquiry. 

This Act of March 2, 1867, as passed, is, in all essential 
parts, identical with the bill which, Feb. 15, 1867, was 
returned from the Senate, with amendments, to the House, 
having, in the first instance, passed the House on the 13th 
of the same month. 

This bill had originally been reported in the House as 
from the Joint Committee on Reconstruction, 2 by Mr. 

1 See a summary account of this transaction in Wilson's History of Re- 
construction, pp. 303-313. 

2 House Journal, 2d Sess. 39th Cong. p. 402; Cong. Globe, 2d Sess. 
39th Cong. p. 1036. This committee had originally been appointed at the 
first session of this Congress, and as a joint committee its existence was 
limited to the duration of the session. " In the House, on the second 
day of the second session, Mr. Stevens introduced a concurrent resolution 
that the same committee should be reappointed. It was adopted without a 
division, and concurred in by the Senate on the following day." Wilson's 
History of the Reconstruction Measures of the 39th and 40th Congresses, 
p. 334. The majority -report from this committee, June 8, 1866 {ante, p. 42), 
is officially printed under the title, " Report of the Committee on Recon- 
struction." It does not appear therein how the committee had acquired this 
title. The heading of the report is, " The joint committee of the two Houses 



220 THE RECONSTRUCTION LEGISLATURE. 

The Reconstruction Clauses of the Bill. 

Stevens, the chairman, on Feb. 6, 1867, with the title " A 
Bill for the more Efficient Government of the Insurrec- 
tionary States." 

As originally reported from the committee, and as it had 
passed the House before going to the Senate, the provisions 
of this bill related only to the establishment of military 
governments in the ten States mentioned in the bill, and 
were substantially those embodied in the first four sections 
of the bill as finally passed. It contained no provisions 
similar to those in the fifth section of the bill, as amended 
in the Senate, and as finally enacted. 

This section, which is the only part of the statute to 
which the word Reconstruction can be applied as a descrip- 
tive term, indicates a totally different political intention 
from that manifested in the first four sections, even though 
there may be no necessary incompatibility between the 
two parts of the Act, as based on different conceptions of 
the existence of these States. 

This will explain the circumstance that the members of 
the House and of the Senate who voted for the Act as 
finally passed were distinguishable as those who, while 
they favored the original bill, opposed the amendment, 
and those who, while they favored the amendment, opposed 
the original bill. 1 

Independently of any inferences from the several pro- 
visions of the Act itself as finally passed, some indication 
of the political ideas of Congress may be gathered from 
the history of its passage through the Senate and House. 

of Congress, appointed under the concurrent resolution of Dec. 13, 1865, 
with direction ' to inquire into the condition of the States which formed the 
so-called Confederate States of America, and report whether they, or any of 
them, are entitled to be represented in either House of Congress, with leave 
to report by bill or otherwise,' ask leave to report." 

1 This division of opinion among those who finally voted to pass the 
entire statute, being two thirds of each House, was entirely independent of 
the then existing party distinctions, and, for the same reason, the speakers 
among the minority opposing the entire statute rested their objections to the 
original bill and to the amendment on distinctly different grounds. 



THEOEY OF OUE NATIONAL EXISTENCE. 221 

Report of the Committee on Reconstruction. 

The report made by the majority of the same com- 
mittee at the previous session, June 8, 1866, has already 
been cited (ante, p. 48) as a document which might be 
expected to contain some declarations which should be re- 
ceived as an opinion, of greater or less authority, as to 
the position or relations of a State of the Confederacy 
towards the United States, as represented by the general 
Government. 

By the renewal of the committee at this second session 
of the same Congress, this report stands in the same con- 
nection with the bill offered at this session by Mr. Ste- 
vens as it had with any of " the specific recommendations 
submitted " at the first session by the majority, at the 
same time with their report. (Ante, p. 48.) 1 

Here, therefore, it is again referred to as it may be his- 
torically connected, in the relation of apparent motive to 
recorded action, with the measures enforced under the 
legislation of Congress at this crisis ; and it is in that con- 
nection that the opinions of those who signed this report 
are noticeable in following the line of inquiry already in- 
dicated. 2 

1 These are found on the introductory pages (iv., v.) of the report, in a 
proposed amendment which afterwards became the Fourteenth Article of 
Amendments (ante, p. 217, note), and two proposed bills, one entitled "A Bill to 
provide for restoring to the States lately in Insurrection their full Political 
Rights." This appears to have been that which was reported to the House 
April 30, 1866, as House Bill, No. 543. It provided that, " whenever the 
above-recited amendment shall have become part of the Constitution of the 
United States, and any State lately in insurrection shall have ratified the 
same, and shall have modified its Constitution and laws in conformity there- 
with, the senators and representatives from such State, if found duly quali- 
fied, may, after having taken the required oaths of office, be admitted into 
Congress as such." This appears to have been the bill which, according to 
Mr. Blaine's statement in the House Feb. 12, 1867, " was kicked under the 
table in both branches. It was so far scouted that it never had a third 
reading." Cong. Globe, 2d Sess. 39th Cong. p. 1182. 

2 " The government of free countries is largely in the hands of com- 
mittees." North Am. Rev., December, 1879, in an article by Mr. George S 
Boutwell, one of the committee who signed this report. 



222 THE RECONSTRUCTION LEGISLATION. 

Theories apparent in the Report. 

A passage from the report itself has already been cited, 
ante, p. 48, in which the signers themselves speak of " the 
specific recommendations submitted by them " as " the 
result of mutual concession, after long and careful com- 
parison of conflicting opinions." I think it is also apparent, 
from a comparison of the several paragraphs which I have 
cited from the report, and indicated by letters in brackets 
on pages 43 to 46, and of those numbered from one to five 
on pages 46, 47, that two different theories can be distin- 
guished as having been entertained by the committee and 
as having been put forth in almost regular alternation 
in the majority report, one of these being the conquest 
theory, the other, some theory which, for convenience, 
may be called the doctrine of State-suicide. 1 

A passage occurs in a portion of the report which has 
already been cited, ante, p. 44, which might seem to indi- 
cate that the action of Congress was invoked upon the 
basis of executing the guaranty to each State of a repub- 
lican government. 

The passage reads : — 

" A State within the Union has obligations to discharge as a 
member of the Union. It must submit to Federal laws and uphold 
Federal authority. It must have a government republican in form, 
and by which it is connected with the general government, and 
through which it can discharge its obligations." 

It may be thought that this language would be incon- 
sistent with the assertion either of a conquest of these 
States, or of the doctrine of their lapse into a Territorial 
condition, there being, under either view, no " State in the 
Union " to receive the benefit of the guaranty. 

This passage in the report must, however, be understood 
in connection with the whole paragraph in which it stands, 
which is a reply to the objection that the Confederate 

1 Compare also the clauses marked [a] and [6] in the rejected preamble 
of the bill described, ante, p. 37, and note 2. 



THEORY OF OUR NATIONAL EXISTENCE. 223 

Report of the Committee on Eeconstruction. 

States were still States of the Union, and which grants the 
"question" as a "profitless abstraction," while, in the 
paragraph immediately following, an answer is given, con- 
cluding that "the States may, through the act of their 
people, cease to exist in an organized form." 1 

All that I have occasion to notice in this connection is 
the political fact that, judging only from the report itself, 
the members of the majority of the committee were divided 
as those who relied on the theory of conquest and those 
who relied on some theory of State-lapse as a basis for re- 
construction, and that, therefore, the action of Congress, if 
regarded as adopted in consequence of this report, may be 
understood as intended to carry out one or the other of 
these ideas. 

In addition to the internal evidence presented by the 
report itself, other evidence of the political views of its 
framers may be gathered from the criticism of the minority 
report made at the same time, which is mainly based upon 
the objection that the report rendered by the majority 
involves the assertion that the eleven States had been 
conquered as States. Against this they cite from the 
opinions of the courts and declarations of the government 
repudiating the idea of such a conquest, and especially 
from the opinions of Judge Spragne in the Amy Warwick, 2 
and of Judge Nelson in Re Egan. 3 

The individual opinions of the several members of the 
majority of the committee maybe more or less known from 
their share in the debates on this bill, or from their declara- 
tions made on other occasions. 

The members of the committee who signed the majority 
report were, Senators W. P. Fessenden of Maine, James 
W. Grimes of Iowa, Ira Harris of New York, J. M. Howard 
of Michigan, George H. Williams of Oregon, and Repre- 
sentatives Thaddeus Stevens of Pennsylvania, Elihu B. 
1 Ante, p. 43 [d] ; p. 45 [e]. 2 To be cited hereafter. 8 Ante, p. 44, n. 



224 THE RECONSTRUCTION legislation. 

Views of the Members of the Committee. 

Washburne of Illinois, Justin A. Morrill of Vermont, John 
A. Bingham of Ohio, Roscoe Conkling of New York, 
George S. Bontwell of Massachusetts. 1 

As the bill introduced in the House by Mr. Stevens on 
the 6th was nearly the same as one introduced on the 4th 
of February, 1867, in the Senate by Mr. Williams, 2 another 
member of the committee, it may be supposed that this 
senator agreed in the views taken by Mr. Stevens as to 
the position of the States of the Confederacy, as being con- 
quered States. 

On the 15th of February Mr. Howard, who was also a 
member of the joint committee, said in the Senate, in the 
debate on amending the House bill, — 

" The principle upon which the bill proceeds is the principle for 
which I have all along contended, that the rebel States, as com- 
munities, have been conquered by the arms of the United States in 
the prosecution of the war which resulted in the suppression of the 
rebellion waged by those States. I hold that, subject to the Con- 
stitution of the United States, and to the duty of ultimately restor- 
ing the rebel States to their former standing under the Constitution, 
the government of the United States has the same power in refer- 
ence to those conquered communities as it would have had they 
been foreign territory." Cong. Globe, 2d Sess. 89th Cong., p. 
1365 ; Wilson's Hist. Rec. p. 353. 

1 Those of the same committee who signed the minority report were 
Senator Reverdy Johnson of Maryland, Representatives Henry Grider of 
Kentucky, and Andrew J. Rogers of New Jersey. Henry T. Blow, of Mis- 
souri, Representative, a member of the committee, had not signed either 
report, and was excused from attendance during the second session on 
account of illness. Mr. Grider had died before the session, and his place 
had been filled by Mr. Hise, also a representative from Kentucky. 

2 Senate bill No. 564, read twice by its title and referred to the Joint 
Committee on Reconstruction and ordered to be printed. Cong. Globe, 
2d Sess. 39th Cong. p. 975. Mr. Wilson, History of the Reconstruction 
Measures, &c, p. 385, says that the two bills were nearly alike. The Senate 
bill had the word Rebel, for Insurrectionary, in the title, and also gave the 
President the power of appointing the military commanders, which in the 
House bill was given to " the general of the army." These features were 
placed in the House bill after it had gone to the Senate. 



THEORY OF OUR NATIONAL EXISTENCE. 225 

Views of the Members of the Committee. 

In the Senate, Feb. 3, 1866, in remarks " upon the con- 
dition of the country in view of the veto on the Freedman's 
Bureau, and upon reconstruction," during debate on reso- 
lutions from the House against the admission of senators 
and representatives from the eleven States, Mr. Fessenden, 
who was also a member of the Committee on Reconstruction, 
had maintained the doctrine of conquest as in an interna- 
tional war. 1 

The debates in the House on this bill began on the 7th 
of February, 1867, being opened in a speech by Mr. 
Stevens. The bill was read a first and second time, and 
the question was on ordering it to be engrossed and read a 
third time. Cong. Globe, pp. 1036, 1037, with bill in full. 

Mr. Stevens said : — 

" This is a bill for the purpose of putting under governments ten 
States now without governments. They are States of the late so- 
called Confederacy, as I have called them. Other gentlemen have 
contended that they were States nowhere. I have differed with 
these gentlemen in this respect. I have said that these were per- 
fect States, with perfect organizations, under a foreign government. 
It is, at any rate, certain that those States now have no governments 

1 " He maintained ' that this country has been in a state of war, decidedly 
in a state of war, war according to the books, war in its worst acceptation, 
war in the very strongest meaning of the term, or without any limit or 
qualification. If we have been in a state of war, the question arises, and it 
is a very simple one, and I think the whole thing lies in a narrow compass, 
Is there any dispute as to what are the consequences of war 1 What are the 
consequences of successful war ? Where one nation conquers another, over- 
comes it without qualifications, without terms, without limits, and after a 
bitter contest succeeds in crushing its enemy, occupying its enemy's terri- 
tory, destroying its ports, what are the consequences ? ... Is there any- 
thing more certain than that the conqueror has a right, if he chooses, to 
change the form of government, that he has a right to punish, *that he has a 
right to take entire control of the nation and the people, that he has a right 
to exact security for the future, and such security for his own safety as he 
may demand ; that all these rights are his, with only the limitation that he 
shall not abuse them and conduct them in a manner contrary to humanity, 
in the ordinary acceptation of the term ! ' " Wilson's Hist. Rec. p. 208 ; 
Cong. Globe, 1st Sess. 39th Cong. p. 987. 



226 THE BECONSTEUCTION LEGISLATION. 

Views of the Members of the Committee. 

which are known to the Constitution and laws of the United States ot 
America ; that for nearly two years they have been lying in a dis- 
organized condition. Nearly two years ago the army of a govern- 
ment, calling itself the Confederate States of America, was conquered, 
and the government was dispersed. By the law of nations the 
conqueror, after that, had a right to say exactly what government 
should be administered over them or by them, keeping always 
within the law of nations. The conqueror had a right either to 
extend his own laws over those conquered States, or, if no action 
was taken by the conqueror, then, by the law of nations, the old 
institutions were permitted to run on for the purpose of administer- 
ing the local laws until such time as the conquering party should 
act. I have merely stated the condition of those States according 
to the well-known law of nations." Cong. Globe, 2d Sess. 39th 
Cong. p. 1076. 1 

In his remarks on February 7, above cited, Mr. Stevens 
referred apparently to some other members of the com- 
mittee, as the " other gentlemen who have contended that 
they were States nowhere." Tins may be supposed to 
mean that others of the committee from which the bill 
came were distinguishable as having sustained, or proposed 
to sustain, a course of political action based on the as- 
sumption that these States had ceased to exist as States or 
as political members of the Union, and were to be regarded 
as being substantially territories of the United States ; or 

1 Mr. Stevens, as chairman, had at the previous session reported the bill 
from the same committee (ante, p. 221), which recognized the existence of 
those States. Mr. Stevens had, however, Jan. 3, 1867, introduced a substitute 
for that bill, with a preamble : " TVhereas, The eleven States which lately 
formed the government called the Confederate States of America have for- 
feited all their rights under the Constitution." Cong. Globe, 2d Sess. 39th 
Cong. 250. Eroni much of the argument of Mr. Stevens and others in sup- 
porting House Bill Xo. 1143, it might be inferred that they did not rest the 
power claimed so much on the issue of the war in 1865 as on the refractory 
temper of the white population of these States after that time, as shown by 
their unwillingness to ratify the Fourteenth Amendment (see Senator Doo- 
little's remarks, Feb. 16, 1867, Cong. Globe, p. 1440), and by their treat- 
ment of those emancipated under the Thirteenth Amendment confirming 
the liberation supposed to have been effected by Mr. Lincoln's proclamation. 



THEORY OF OUR NATIONAL EXISTENCE. 227 

Views of the Members of the Committee. 

to employ the phrase of that time, these gentlemen had 
accepted some theory of State-suicide. 1 

In the debates in the House, Mr. Boutwell 2 supported 
Mr. Stevens's bill as originally introduced 3 and agreed 
with him also in resisting, as inconsistent with the pow- 
ers to be exercised under its provisions, the amendments 
then proposed, which were incorporated into the fifth 
section of the Act as finally passed. 

Mr. Boutwell did not in this debate express a direct 
dissent from Mr. Stevens's doctrine of conquest, though he 
intimated on several occasions his non-recognition of the 
States as States. He had on previous occasions fully 
maintained a doctrine of State-suicide, as in the resolu- 
tions offered by him Feb. 16, 1864, Cong. Globe, 1st Sess. 
38th Cong. p. 683 ; Macpherson's Pol. Hist. p. 328 ; in 
remarks in a debate in the House, May 4, 1864, Cong. 

1 In remarks, Dec. 18, 1865, on offering resolutions on the President's 
message, Mr. Stevens said, " The President assumes what no one doubts, 
that the late rebel States have lost their constitutional relations to the 
Union, and are incapable of representation in Congress, except by permis- 
sion of the Government. It matters little, with this admission, whether 
you call them States out of the Union, and now conquered territories, or 
assert that because the Constitution forbids them to do what they did do, 
that they are, therefore, only dead as to all national and political action, 
and will remain so until the Government shall breathe into them the breath 
of life anew, and permit them to occupy their former position. In other 
words, that they are not out of the Union, but only dead carcasses lying 
within the Union." Mr. Stevens proceeded to place the power of Congress 
on the clauses, " new States may be admitted by the Congress into this 
Union," and the guaranty of republican government to each State. After 
which he proceeded to demonstrate the conquest doctrine, relying on the 
decision of the Supreme Court, especially citing Grier, J., in the Prize cases, 
and Mrs. Alexander's cotton. (Ante, pp. 49, 64.) Cong. Globe, 1st Sess. 
39th Cong. p. 72 ; Wilson's Hist. Rec. p. 43. 

2 Afterwards Secretary of the Treasury. 

8 Feb. 8, 1867, Mr. Boutwell said of Mr. Stevens's bill, " I believe I am 
guilt}' of no breach of confidence when I say that never has any report 
been made from that committee which was so unanimously supported by its 
different members as the one now under consideration by the House ; nor 
has any bill submitted by that committee ever been so carefully considered 
as this." Cong. Globe, 39th Cong. p. 1122. 



228 THE RECONSTRUCTION LEGISLATION. 

Amendments proposed by Mr. Bingham. 

Globe, 1st Sess. 38th Cong. p. 2103 ; also in an address 
delivered at Weymouth, Mass., July 4, 1865, published in 
pamphlet entitled " Reconstruction and its True Basis." 

For reasons already given^ the debate on Mr. Stevens's 
original bill is to be distinguished from that on the pro- 
visions for " reconstruction," first proposed during the 
same debate in the House, and afterwards incorporated in 
the bill by the Senate. 

At the evening session of the day of the introduction of 
the bill, Mr. Bingham, who was also a member of the com- 
mittee, and who had signed the majority report, asked 
leave to introduce several amendments ; the first being to 
strike out the preamble, 1 because, as he said, " it is inter- 
preted by the gentlemen who reported this bill as being 
intended, although it is no part of the bill and has no 
operative effect, — as a solemn declaration on the part of 
this House that those States are foreign conquered ter- 
ritories, and that the people of those States, and all the 
people therein, are alien enemies, captives of war, and 
subject to the conqueror's will." Cong. Globe, 2d Sess. 
39th Cong. p. 1081. 

On the same day, February 7, Mr. Bingham proposed 
certain amendments to the bill in respect to regulating the 

1 The preamble of Mr. Stevens's bill read, " Whereas, the pretended 
State governments of the late so-called Confederate States of Virginia, North 
Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Texas, 
and Arkansas, were set up without the authority of Congress, and without 
the sanction of the people ; and whereas said pretended governments 
afford no adequate protection for life or property, but countenance and en- 
courage lawlessness and crime, and whereas it is necessary that peace and 
good order should be enforced in said so-called States until loyal and repub- 
lican State governments can be legally established, Therefore, be it," &c. 
" That said so-called States shall be divided," &c. 

Mr. Bingham proposed a substitute, reading, " Whereas, it is necessary 
that peace and good order should be enforced in the several States of Vir- 
ginia, &c, lately in rebellion, until said States respectively shall be fully 
restored to their constitutional relations to the United States." 



THEORY OF OUR NATIONAL EXISTENCE. 229 

Mr. Bingham's and Mr. Blaine's Amendments. 

issue of writs of habeas corpus? and on the 12th brought 
forward the proposition for an amendment which he had, 
in the committee, endeavored without success to have 
incorporated with the bill as reported by Mr. Stevens, 2 
and which consisted in provisions for reconstruction 
like those afterwards embodied in Sect. 5 of the Act as 
passed. 

After Mr. Bingham had proposed his amendment of the 
12th, Mr. Blaine, of Maine, on the same day, " said he 
would vote for the bill whether amended or not," but 
proposed as an amendment a section which he urged Mr. 
Stevens to accept as additional to his own bill, and which 
contained similar propositions to those in Mr. Bingham's 
amendment. 3 

1 Cong. Globe, p. 1084. These related to the issue of the writ from 
courts of the United States in behalf of persons in military custody, and 
were not finally embodied in the Act. Mr. Bingham's remarks at this 
time had, however, a general application to the propriety of the whole bill, 
and were, seemingly, a preparation for the more important amendment of 
the 12th, which, as first proposed, was a virtual remodelling of the whole 
enactment b} r putting the reconstruction provisions in a first section, as the 
main object of the bill, and making the original provisions for military gov- 
ernments appear secondary to the reconstruction clauses. In that form it is 
found in the Cong. Globe, p. 1177. 

2 According to his own statement, February 13. Cong. Globe, p. 1212; 
Wilson's Hist. Rec. p. 345. 

3 In Mr. Bingham's amendment it was provided that whenever the arti- 
cles recited in this proposed bill (the Fourteenth of Amendments) " shall have 
become part of the Constitution of the United States, and any State afore- 
said, lately in insurrection, shall have ratified the same," &c. This seems 
to be worded so that these States might be counted in the whole number, if 
with their assents the requisite three fourths could be obtained, or excluded 
from the whole number if they withheld their consent. The same elasticity 
seems to have been sought in the language of the fifth section as finally 
adopted. See ante, p. 41. Mr. Blaine's amendment presented this impor- 
tant feature, as he stated it himself in the House, February 12 : " It specifi- 
cally declares that three fourths of the States now represented in Congress 
have the power to adopt the constitutional amendment and does not, even by 
implication, give them to understand that their assent or ratification is neces- 
sary to its becoming a part of the Constitution." Cong. Globe, 2d Sess. 
39th Cong. p. 1182. His proposed amendment to the bill read, " That when 



230 THE RECONSTRUCTION LEGISLATION. 

The Bill as first passed by the House. 

On the loth, Mr. Bingham accepted Mr. Blaine's amend- 
ment as his own. 

But their combined efforts to have the amendment 
incorporated into the bill before the House were unsuc- 
cessful. 

The introduction of these amendments into his own bill 
was vehemently resisted, at each step in its passage, by 
Mr. Stevens, who refused even to give an opportunity to 
take the sense of the House upon it. He, as did also Mr. 
Boutwell, 1 opposed them as being entirely inconsistent 
with the power to be exercised under his bill, and a vir- 
tual recognition of the propriety of President Johnson's 
general action in reference to these States. 

On the 13th, Mr. Stevens introduced a " substitute " for 
his original bill, differing only by a slight modification of 
its phraseology " to make the bill more acceptable." 

On the same day this bill was put to vote, and passed the 
House. Yeas, 109 ; nays, 55 ; not voting, 26. Cong. Globe, 
2d Sess. 39th Cong. p. 1215. 

It is of course by no means certain that any action of 
the House of Representatives was in accord with the 
views of the majority of the Committee on Reconstruction, 2 

the constitutional amendment, proposed as Art. XIV., by the Thirty- 
Ninth Congress, shall have become a part of the Constitution of the United 
States by the ratification of three fourths of the States now represented in 
Congress, and when any one of the late so-called Confederate States shall 
have given its assent to the same, and conformed its constitution and laws 
thereto in all respects." Mr. Blaine did not at this opportunity offer any 
argument for excluding States which had been counted in ratifying the 
Thirteenth Article. Ante, p. 217, note. 

1 Cong. Globe, p. 1209. 

2 Mr. Thayer, one of the members of the House who supported Mr. 
Stevens's bill said, February 8, " Nobody, I suppose, regards this bill as a 
Reconstruction Bill." Mr. Stevens, February 13, said, " I may say that this 
bill came from the same committee after a careful examination, with the 
unanimous consent of every member of the committee belonging to this 
side of the House, except one. It came here with a perfect understanding 
that, if it was to pass and become a law, it must pass without amendment. 
It was not intended as a Reconstruction Bill. It was intended simply as a 



THEORY OF OUR NATIONAL EXISTENCE. 231 

The Bill as changed in the Senate. 

merely because following their report in the order of time, 
and much less certain that it was intended to express 
political views identified with the opinions of any individ- 
ual member of that committee. Still, from the history of 
this bill of Mr. Stevens, as passed by the House on Feb. 
13, 1867, without amendment, it is a natural inference 
that the majority of the House had accepted either the 
doctrine of conquest or that of State-suicide. 

On the other hand, I do not know of any public docu- 
ment connected with the action of the Government in 
reconstruction, as was this report with the bill so passed 
in the House, which can be referred to as showing that 
that action was based by Congress upon the theory of a 
power and duty arising from the guaranty by the United 
States, to each State, of a republican government. 1 

On the 15th, Mr. Johnson, of Maryland, 2 though not 
proposing to vote for the bill, moved in the Senate to 
amend the House bill by adding a section containing the 
Reconstruction amendment of Messrs. Bingham and Blaine. 
On the 16th, Mr. Sherman, of Ohio, 3 moved a substitute 
for the House bill, which consisted of the bill originally 
reported in the Senate by Mr. Williams, 4 February 4, and 

police bill to protect loyal men from anarchy and murder." Cong. Globe, 
p. 1214. As this part of the Act seems to have been the only legislation 
proposed from the committee which attained the force of statute law, it 
might be questioned whether the name Committee on Reconstruction which it 
had acquired, did not prove somewhat of a misnomer; unless the provision 
suggested by the " one " member goes to its credit, though the committee 
had refused to give it their recommendation. 

1 Among a variety of bills introduced by their titles were two bills, each 
entitled, " A Bill to Guarantee a Republican Government," &c, introduced 
into the House at the second session of the Thirty-ninth Congress (Cong. 
Globe, pp. 44, 319), but no further proceedings were had. 

2 Mr. Reverdy Johnson, who has been of the committee on Reconstruc- 
tion, and one of the signers of the minority report. 

3 Afterwards Secretary of the Treasury. 

4 Ante, p. 224, note. Senator Sherman, in moving his substitute, said, 
" The first four sections of this substitute contain nothing but what is in the 
present law. There is not a single thing in the first four sections that does 



232 TELE RECONSTRUCTION LEGISLATION. 

The Bill as finally passed. 

which Mr. Stevens had reported with modifications in the 
House on the 6th, with the addition of Mr. Bingham's 
original amendment. Wilson's Hist, of Reconstruction, 
p. 364. 

In this form the bill passed the Senate, February 16. 
Yeas, 29 ; nays, 10. Cong. Globe, pp. 1360, 1379, 1459. 

Being returned to the House in this form, the House 
refused to concur. Yeas, 73 ; nays, 98 ; not voting, 19. 
Cong. Globe, p. 1340. 

February 20, the Senate insisted on their amendment. 

The bill being again before the House, an amendment, 
proposed by Mr. Wilson of Iowa, as to non-eligibility, for 
conventions for framing the new constitutions, of persons 
excluded from holding office under the United States by 
the proposed constitutional amendment was adopted, and 
also another, moved by Mr. Shellabarger, of Ohio, that the 
same disqualification should rule in framing any provis- 
ional government. In this form the Senate bill passed 
the House, Feb. 20, 1867. ' Yeas, 126 ; nays, 46 : not vot- 
ing, 18. Cong. Globe, p. 1401. 

The bill again passed in the Senate, and afterwards be- 
came a law by a two-thirds vote of both Houses, after 
having been returned unsigned by President Johnson. 1 

Considering the want of harmony in the ordinary 
statements of the political character of the event made by 
official representatives of the Government, of which a very 
imperfect illustration has been given by the citations in 
former chapters, it is probable that there will always be 
much difference of opinion as to the character of the 
action of Congress bearing on the status of these States, 
and consequently, for some time to come, a difference of 

not now exist by law. ... In regard to the fifth section, which is the main 
and material feature of the bill." Wilson's Hist. Rec, p. 365. 

1 The most important clauses of Sects. 5 and 6 have already been given, 
ante, pp. 40, 41. 



THEORY OF OUR NATIONAL EXISTENCE. 233 

An Historical Parallel. 

opinion as to what should be the position of any State, un- 
der like circumstances, in the future. 

The conflict of political doctrine, co-existing with unity 
in political action, which stands recorded in the history of 
this enactment, suggests a practical comment, which I 
introduce by citing the criticism of Macaulay on a docu- 
ment, famous in English history, to which, I think, this 
legislation offers something like a parallel instance. 

The historian is relating the crisis which occurred on 
the 28th of January, 1688, when the English House of 
Commons, in committee of the whole, found itself com- 
pelled to decide, by some course of action, whether it 
would or would not recognize James the Second as the 
king of England, and its decision was expressed by the 
resolution declaring the throne vacant. 

Of this resolution, Macaulay says, in the tenth chapter 
of his History of England : — 

" The minority sullenly submitted, and suffered the predominant 
party to take its own course. 

" What that course would be was not perfectly clear. For the 
majority was made up of two classes. One class consisted of eager 
and vehement Whigs who, if they had been able to take their own 
course, would have given to the proceedings of the Convention a 
decidedly revolutionary character. The other class admitted that a 
revolution was necessary, but regarded it as a necessary evil, and 
were desirous to disguise it, as much as possible, under the show of 
legitimacy. The former class wished for a distinct recognition of 
the right of subjects to dethrone bad princes. The latter class 
wished to rid the country of one bad prince without promulgating 
any doctrine which might be abused for the purpose of weakening 
the just and salutary authority of future monarchs. The former 
class dwelt chiefly on the king's misgoverument ; the latter on his 
flight. The former class considered him as having forfeited his 
crown ; the latter as having resigned it. 

" It was not easy to draw up any form of words which would 
please all whose assent it was important to obtain ; but at length, 



234 THE RECONSTRUCTION LEGISLATION. 

An Historical Parallel. 

out of many suggestions offered from different quarters, a resolu- 
tion was framed which gave general satisfaction. It was moved 
that King James the Second, having endeavored to subvert the 
constitution of the kingdom by breaking the original contract be- 
tween king and people, and, by the advice of Jesuits and other 
wicked persons, having violated the fundamental laws, and having 
withdrawn himself out of the kingdom, had abdicated the govern- 
ment, and that the throne had thereby become vacant. 

" This resolution has been many times subjected to criticism as 
minute and severe as was ever applied to any sentence written 
by man ; and perhaps there never was a sentence written by man 
which would bear such criticism less. ... It is idle, however, to 
examine these memorable words as we should examine a chaj)ter 
of Aristotle or of Hobbes. Such words are to be considered, not 
as words, but as deeds. If they effect that which they are intended 
to effect, they are rational, though they may be contradictory. If 
they fail of attaining their end, they are absurd, though they carry 
demonstration with them. Logic admits of no compromise. The 
essence of politics is compromise. It is therefore not strange that 
some of the most important and most useful political instruments 
in the world should be among the most illogical compositions that 
ever were penned. The object of Somers, of Maynard, and of the 
other eminent men who shaped this celebrated motion was, not to 
leave to posterity a model of definition and partition, but to make 
the restoration of a tyrant impossible, and to place on the throne a 
sovereign under whom law and liberty might be secure. This 
object they attained by using language which, in a philosophical 
treatise, would justly be reprehended as inexact and confused. 
They cared little whether their major agreed with their conclusion 
if the major secured two hundred votes, and the conclusion two 
hundred more. In fact the one beauty of the resolution is its in- 
consistency. There was a phrase for every subdivision of the 
majority. . . . To the real statesman the single important clause 
was that which declared the throne vacant ; and if that clause 
could be carried, he cared little by what preamble it might be 
introduced. The force which was thus united made resistance 
hopeless. The motion was adopted by the committee without a 
division." 



THEORY OF OUR NATIONAL EXISTENCE. 235 

The Practical Comment. 

The comment which this citation from Macaula} r was 
intended to introduce is that, whatever opinions may 
have influenced the action of Congress in the so-called 
reconstruction legislation, the ten States were placed in 
their " practical relations " to the Government of the 
United States by political measures which were essen- 
tially the same as those which occur in the admission of 
new States, created in' former Territories. States were 
reconstructed out of the materials of land and population, 
and therefore they were not restored. The very name 
reconstruction, which has been popularly adopted to express 
the transaction, 1 expresses its real nature, in spite of the 
disguises which had been invented to conceal it, and 
which seemed to be necessary because no theory of our 
national existence had been given, adequate to receive the 
new political fact as agreeing with the original political 
facts from which the written Constitution derived its 
authority as law. 

From the general tenor of these reconstruction pro- 
visions, thus added to Mr. Stevens's original bill for mili- 
tary governments, it might be surmised that, if Congress, 
as a whole, can be supposed to have entertained any 
definite theory (neither that of conquest, nor that of 
State-lapse) as supporting this legislation, it was one 
founded on the clause in the fourth article, commonly 
called the guaranty clause. 

It may further be assumed, for the present at least, on 
the testimony given on this point in the opinions of jus- 

1 It may, perhaps, hereafter be taken not to apply merely to the rehabili- 
tation of the eleven States of the Confederacy, but to an entire change in the 
relations of all the States or a general reorganization of our political life. 
This appears to have been the sense in which it was first employed in our 
politics : as in some of the resolutions offered in the Senate in 1861 (see Mac- 
pherson's Pol. Hist. 64, 65), and in various public declarations made soon 
after, in the name of the Southern States. lb. 329, 331. 



236 THE RECONSTRUCTION LEGISLATION". 

Legislation as founded on the Guaranty Clause. 

tices of the Supreme Court which have herein been cited, 1 
that, in undertaking to fulfil a duty or use a power under 
this clause, Congress presupposed that, as a political fact, 
these States, being States of the Union, were at this time 
destitute of republican governments, either, — 

1, Because they had no State governments at all ; or, 

2, Because, having State governments, they were gov- 
ernments which were not republican in form. 

This being understood as the general doctrine relied on 
by Congress, it may properly be inquired — 

Upon what reasoning may either of these positions be 
sustained ? 

The question is not, On what reasoning did the sev- 
eral members of Congress who held either of these posi- 
tions rest their convictions ? It cannot be assumed that 
their reasoning was the best possible reasoning to support 
those convictions. It cannot be inferred that the argu- 
ments offered before Congress as a legislative body were 
those which influenced its action ; or that they were held 
by it, or should be held by any body, the best of all possi- 
ble arguments for that action, even though they may 
have been presented by the persons who had originally 
proposed such action. 

For this reason, I would not present the remarks of any 
particular member of the House or of the Senate, as those 
on which the whole argument from the guaranty clause 
should be judged. As, however, Mr. Bingham was the 
mover of the reconstruction provisions, and as his argument 
may be supposed to have been that against which most 
opponents of that part of the statute directed their replies, 
it may be taken as presumptively representing the prevail- 
ing ideas of the majority in regard to the guaranty clause, 
and its applicability in this instance. 

1 Texas v. White, ante, p. 14 ; Keith v. Clark, ante, p. 30. 



THEORY OF OUR NATIONAL EXISTENCE. 237 

Mr. Bingham's Argument. 

On Feb. 7, 1867-, when offering his first amendment to 
Mr. Stevens's bill, Mr. Bingham said : * — 

" It is true, undoubtedly true, that these States remained disor- 
ganized States in the Union. It is also undoubtedly true that those 
who were the conquerors upon the field of battle reduced those in 
rebellion to subjection. 2 It is also undoubtedly true that the govern- 
ment of the United States, by its own election, extended to those 
insurgents the rights of belligerents, 3 and it is also true that by 
their rebellion those insurgents failed to place themselves in a 
position to put those States out of the Union or in the condition of 
foreign territories, or beyond the jurisdiction of the United States. 
They fully succeeded by their rebellion in overturning their pre- 
viously existing State governments ; and, that being the case, the 
gentleman will find an answer to his question in this, — that it follows 
from the premises 4 that the legislative power of the government of 
the United States is exclusive within those States, and will so con- 
tinue, until the people thereof reorganize constitutional State gov- 
ernments, and the same shall be recognized by Congress. . . . 
I was proceeding to say, those insurgent States, 5 having by rebellion 

• Cong. Globe, 2d Sess. 39th Cong. 1082. This portion of his remarks 
was mainly in reply to an inquiry by Mr. Eldridge of Wisconsin, as to his 
reconciling a military government with the position that these were " States 
of the Union, and not conquered territories." 

2 This is the important sentence, by the method of argumentation 
adopted by the speaker. In the ambiguity of the words here employed 
those " premises " are found on which his demonstration rests. Everything 
depends on identifying the personalities recognized in " the conquerors," 
and in those who were " in rebellion " and subjected. 

3 " By its own election," — because it could not do otherwise than accord 
belligerency to somebody whom it was impossible to treat in any other way 
than as a belligerent, ante, p. 199. This mention of " insurgents," as dis- 
tinguished from " States," is to be noticed in connection with the mention, 
which follows, of " insurgent States " in this same argument. 

4 The speaker had not laid down any premises at all, from which any con- 
clusion whatever could follow. He had simply asserted that the conqueror 
had put down a rebellion by overcoming those who were insurgents as to him. 
But this was equivalent to saying that his legislative power had always 
been exclusive ; and this made the argument a petitio principii. 

5 The insurgents, then, who had just been spoken of as having been con- 
quered, were, it seems, States. If States, they must previously have had 
some jurisdiction of their own, co-existent with that of the general govern- 
ment. But if the jurisdiction of the latter had now become exclusive, the 



238 THE EECONSTEECTION LEGISLATION. - 

Mr. Bingham's Argument. 

destroyed and disorganized their State governments, ceased to be 
represented, or to be entitled to be represented, from that day in 
the Congress of the United States. 1 . . . 

" The whole nation has settled 2 the question of the powers of 
Congress to legislate over those insurgent States, without their 
consent and against their consent. It must be so, or it follows 
that all the laws you have enacted during the last five years, affect- 
ing those people, are unconstitutional and void. 3 This exclusive 
power being in Congress to legislate over the people of those dis- 
organized States for the protection of persons and property, it 
follows that their temporary organizations are subject to such 
limitations and prohibitions as, by law, Congress may impose. 
This being so, this bill in its general provisions touching those 
State governments is justified if, in the judgment of Congress, the 

government must have conquered those States, — which was Mr. Stevens's 
proposition. 

1 If this statement was true it must have been true either as matter of 
law or as matter of fact. But the case was not like that of a corporation 
created by municipal law, which may be destroyed, as matter of law, by 
the illegal acts of the corporators. A State government could exist only by 
the will of the political people of a State, being one of the United States. The 
idea that the States held their powers under the Constitution of the United 
States as law, grows out of the fundamental falsity of the school of Story 
and Webster (ante, p. 113), which underlies all arguments like this of Mr. 
Bingham. So far as that Constitution was laiv for anybody, it was so 
because it expressed the will of the States, being united ; as is proved by 
history. (Ante, ch. iv.) As to the matter of fact, each of these State gov- 
ernments had been and was at that moment sustained by the political people 
of one of these States, and therefore they were not, as matter of fact, over- 
turned by those States. 

2 This was in reply to a question by Mr. Wright, of New Jersey, " I 
would like to ask the gentleman if, in his opinion, the party to which he 
belongs has conformed to the Constitution ? " The reply indicates the 
entrance of an entirely new element in all the questions before Congress, 
then and afterwards ; that is, that some new manifestation of the will of the 
sovereign, transcending the written constitution, had intervened ; that a 
national will then demanded recognition above that written law which had 
been supposed to have been vindicated : in other words, that something 
revolutionary had occurred. 

3 This might very well be disputed by those who had based those laws 
on a " war-power " derived from the " law of nations." (Ante, p. 174. ) 
Besides, this is reversing the logical and legal order. The validity of the 
legislation depends on the political facts. Here, the argument makes the 
political facts depend on the validity of the legislation. 



THEORY OF OUR NATIONAL EXISTENCE. 239 

Mr. Bingham and Mr. Boutwell. 

necessity for it exists. The power asserted by this bill is in per- 
fect harmony with all the legislation of this government since the 
breaking out of the rebellion over those States. 1 It has been set- 
tled by the voice of the nation, as I before stated, that those States 
were subject, under the limitations of the Constitution, to such 
legislation as Congress may see fit to impose, and can exercise the 
functions of local self-government only by the sufferance of the 
nation." 2 

At this point in his remarks, the speaker was interrupted 
by another member of the Reconstruction Committee, 
whose view of the position of these States has already 
been noticed. 3 

" Mr. Boutwell. — Will the gentleman allow me to make an 
inquiry ? 

" Mr. Bingham. — Yes, sir. 

"Mr. Boutwell. — I understand that the gentleman from Ohio 
desires, by his amendment to the preamble, to declare that these 
'States,' as they once were in the judgment of all, are now States. 
If he believes that they are now States, I ask him how he can 
reconcile it with his oath to support the Constitution, if he does 
not accord to them all the rights of States under the Constitution, 

1 All that legislation had been founded on the theory of an international 
war, on which Mr. Stevens relied, and with which Mr. Bingham's amend- 
ments were in harmony, if he accepted the conquest doctrine. 

2 So far as there was a nation, it was that in which the United States, 
i. e., the States united, held the sovereign power, and which, when it makes 
its will known for national purposes, makes it known through the persons 
sent by those States to act as their agents for national purposes, who were at 
that moment before the eyes of the speaker, — he being one among many 
in council to declare that will. None of these agents had any right to speak 
for the sovereign in any other way. But the pretension to do this was then, 
and has since been common enough in and out of Congress. Mr. Blaine, on 
moving his amendment to this bill (Feb. 12, 1867, ante, p. 229, Cong. Globe, 
2d Sess. 39th Cong. p. 1182), stated his belief that " the true interpretation 
of the elections of 1866 was that, in addition to the proposed constitutional 
amendment, universal or at least impartial suffrage should be the basis of 
restoration. Why not declare it so 1 " he asked. On which a little dispute 
with Mr. H. J. Raymond, of New York, arose as to the inference to be drawn 
from those elections as to a measure which, in reality, involved the deter- 
mination of the ultimate investiture of political sovereignty. 

s Ante, p. 227. 



240 THE RECONSTRUCTION LEGISLATION. 

Mr. Bingham's Argument. 

and to their citizens all the rights of citizens of the United States 
to the same extent as those rights are accorded to the people of his 
own State ? 

" Mr. Bingham. — I do not, by the amendment, say that they 
are now States as they once were. I have said they are States 
disorganized." 

Mr. Bingham said further, in continuation of his reply 
to Mr. Elclridge's inquiry: — 

" I have before replied to the gentleman that those States, hav- 
ing entered into rebellion, the unlimited power for the common 
defence throughout their limits was exercisable by Congress, by 
virtue of the very terms and intendment of the Constitution, and 
this power may be exercised by Congress until the time when those 
people return to their loyalty and fealty in such a manner as shall 
satisfy the people of the United States, duly organized and repre- 
sented in Congress, 1 of their fitness to be restored to their full 
constitutional relations. 

" If this is not law, 2 then it results that the moment you break 
the battalion of armed rebellion on the field of open conflict, that 
moment all the sovereignty that originally pertained to organized 
constitutional State governments 3 immediately sprung into being 

1 There are no " terms " in the Constitution, as a written law, to settle 
anything about this matter. An " intendment " must be predicated of some 
actual person, who, in this instance, could be no other than the States which 
then were the United States. The speaker's argument rested on the contra- 
diction that some of these very States — from which, if they were States, the 
written Constitution derived its authority — could be excluded from rep- 
resentation by that Constitution as law. If the due organization and repre- 
sentation in Congress of the people of the United States are not, as matter of 
political fact, a consequence of their pre-existence as States united, there is 
no such thing as a people of the United States. Underlying all arguments 
such as the above is the idea of the people by hypothesis, the hypothetical 
nation, as generated in the school of Story and Webster. (Ante, p. 114) 

2 It is not law, because there is no laiv to determine the question. If it 
were question of law, the strength of the argument would have been with 
those who resisted all this legislation. Because, even if the Constitution 
had been law acting on the States as its subjects, which it was not, there 
was nothing in the written Constitution denying the right of a State of the 
United States to be represented in Congress for any reason. 

3 Whatever sovereignty there was had pertained to the political people 



THEORY OF OUR. NATIONAL EXISTENCE. 241 

Mr. Bingham's Argument. 

without the power of challenge on the part of the nation. I deny 
that such is the fact. 1 It remains for those who have been in 
rebellion, after they have surrendered upon the field of conflict, to 
exercise their right of jietition, being citizens of the United States, 
peaceably and quietly under the general operation of the Constitu- 
tion, the general jurisdiction of which still extends over them, and 
to present to the Congress of the United States a constitutional form 
of government, republican, as required by the Constitution, 2 and in 
all respects conformable to the laws of the United States, and 
thereby give some evidence of their disposition and fitness to return 
to that allegiance which they attempted to throw off by their trea- 
son and which they always owe to that government, and to be 
restored to the powers of organized States of the Union which had 
protected them and theirs. 8 When that day comes the government 
by the sword ought to and must cease and determine, and the exclu- 
sive jurisdiction of the United States to govern therein must then 
also cease." 

of the State, and not to their agent, the State government, and the political 
people had never been organized in reference to the Constitution of the 
United States, as a law of their organization. No sovereignty had ever been 
held under the Constitution ; if it had, it would not have been sovereignty. 
The speaker had never attempted to show how the political people of the 
State had lost sovereignty. 

1 But why did not the speaker say, I deny that this is the law ? He had 
put it, at this instant, as a question of law. I, too, deny that such was the 
fact. But the weakness with the arguments on all sides on this question 
was that all who participated in the debate argued it from the lawyer's point 
of view. (Ante, p. 109.) This applies even to those who advocated the con- 
quest and State-suicide theories. 

2 In this sentence an entirely different view of the guaranty clause comes 
to the front, — the idea that the Constitution imposes a duty on citizens, as 
individual persons, to want to have a republican government. This was 
more prominent with other speakers on this question. 

3 It is not clear who the persons referred to are, who are to be governed 
by the sword until they do something, — whether they are individual natural 
persons, assumed, on the fact of their residence, to have been individually 
guilty of treason, or States. No natural person had hitherto been bound 
by law to petition for anything, under penalty of being governed by martial 
law for not petitioning. The States of the United States never owed alle- 
giance to any body ; least of all to persons constituting, as their agents, a 
government which rested on their continuing wills sustaining the written 
Constitution as law. Like all sovereigns, the United States protected them- 
selves, this government being only one of their instrumentalities for that 
purpose. 



242 THE RECONSTRUCTION LEGISLATION". 

Mr. Bingham's Argument. 

Mr. Bingham said further : — 

" I desire to put this amendment into the preamble for the 
further reason that I wish thereby to notify in the most solemn 
form the men who constitute perhaps the majority of the people in 
those ten lately insurgent States, and who themselves were in open 
armed rebellion, that what they have to do and all they have to do 
in order to get rid of military rule and military government is to 
present to the Congress of the United States a constitutional form 
of State government 1 in accordance with the letter and spirit of the 
Constitution and laws of the United States, together with a ratifi- 
cation of the pending constitutional amendment.' 2 That being done, 
sir, this military rule ceases and determines. I am sure of this, — 
that the American people will have rule, civil or military, in those 
insurgent States until they shall be fully restored to their constitu- 
tional relations. 3 And so far as they [*'. e., the American people] 
may be able, under direction of law and the authority of law enacted 
by their Congress, 4 they will protect all men in those States in life, 
liberty, and property, until they can be fully protected under an 
accepted constitutional State government. When men in those 
States shall have fulfilled their obligations, and when the great 
people themselves shall have put by their own rightful authority 5 

1 " The constitutional form of State government " in these ten States 
was neither more nor less "in accordance with the letter and spirit of the 
Constitution " of the United States than it had been before the war ; and 
" the laws " of the United States — that is, the Acts of Congress — were to be 
judged by that Constitution as much as were the laws of any State. 

2 Mr. Blaine, by his amendment (ante, p. 229, note), had squarely asserted 
that the pending amendment would be ratified by three fourths of the 
whole number of States, excluding these ten States. On this basis these 
States would have accepted the amendment as Territories accept the exist- 
ing Constitution. Mr. Bingham's plan contemplated amendments, to bind 
all indiscriminately, being adopted by congressional coercion of some States 
included iu the three fourths. 

3 In this sentence the States, as political personalities, are the parties to 
be dealt with. In the preceding sentence it was " the men who," &c, who 
were to exercise their right of petition. The States had not heretofore been 
imagined in the attitude of petitioners. N 

* Here " the American people," whose will in this matter is assumed to 
be supreme, are, at the same time, supposed to be under the direction of 
laws enacted by their own Congress ; that is, their own agents. 

5 It would appear that " the great people " " by their own rightful 
authority " had yet to carry out "the nation's will"; so that "the great 



THEORY OF OUR, NATIONAL EXISTENCE. 243 

Another Application of the Guaranty Clause. 

into the fundamental law, the sublime decree, the nation's will, that 
no State shall deny to any mortal man the equal protection of the 
laws . . . then, sir, by assenting thereto, those States may be re- 
stored at once." 1 

As has already been noticed, it cannot be known whether 
arguments like these of the mover of these provisions 
of the Act were those upon which the requisite majority of 
both Houses was secured; and it is shown by the recorded 
debates that there were other speakers who rested the 
power of Congress on an interpretation of the guaranty 
clause, or of something of the sort, which did not require 
any begging of the question through terms of doubtful 
meaning. 

The reconstruction clauses of the Act of March 2, 1867, 
do not indeed affirm that, in proposing to these ten States 
a certain electoral basis for their future constitutions, 
Congress acted in execution of a general power to require 
each State, being one of the United States, to have any 
basis which it may judge indispensable to a republican 
form of government. 

It could therefore be only from remarks made at the 
time by its advocates in Congress that any inference could 
be drawn that this act of legislation was founded on such 
a construction of the guaranty clause. 

Even in Mr. Bingham's remarks in the debate on his pro- 
posal to insert these clauses, there were passages indicat- 
ing a leaning to this view : such as that in which the 
phrase occurs, "present to the Congress of the United 

people" and " the nation" are distinguishable, and apparently these States 
were part of this great people who had " a rightful authority " to be exer- 
cised in adopting amendments under the alternative of military rule ! 

1 In these concluding passages the speaker was in harmony with Mr. 
Stevens, whose phrase, " so-called States," he had denounced. For Mr. 
Stevens did not claim a right to govern by military rule, at this time, upon 
conquest, as result of the war, but on the conduct of the white population 
towards the freedmen and their refusal to vote to adopt the Fourteenth 
Amendment ; which is also Mr. Bingham's position in these remarks. 



244 THE RECONSTRUCTION LEGISLATION. 

Other Remarks by Mr. Bingham. 

States a constitutional government, republican in form, as 
required by the Constitution." * 

From the course adopted by Mr. Stevens in reference 
to all amendments to the bill introduced by himself, there 
was little opportunity given to debate in the House on 
these reconstruction provisions until they had been incor- 
porated in the amended bill as returned from the Senate, 
when the near end of the session excluded the opportunity 
for extended discussion. 

At that point, however, in its history, Feb. 18, 1867, 
Mr. Bingham remarked of the whole bill as it was then 
framed : — 

" We further say to the people of those States, ' If you wish to 
exercise the right of local self-government, do equal and exact 
justice, remodel your Constitution, adopt that constitutional amend- 
ment which to-day has the sanction of twenty-five millions of free- 
men in this land, 2 and you will be restored to your equal place and 
to all your political powers in the Union as States. Until you do 
this you shall be subject to such form of government as will best 
secure all men, without respect to race, color, or previous condition, 
their persons and property." Cong. Globe, p. 1319. 

In the Senate, during the debates on this bill, very lit- 
tle allusion was made to the guaranty clause as the foun- 
dation of the power claimed. The supporters of these 
provisions of the Act, as well as those who approved the 

1 And, in reply to a question, Cong. Globe, p. 1083 : " If we are not satisfied 
that these organizations are republican and just and equal and constitu- 
tional, we may require them to go further and to do something else." 

2 So far as the speaker could be informed, all he could say was that the 
amendments had the sanction of a certain number of States in their cor- 
porate capacity. If he proposed to rest their validity on the numerical 
majority of the inhabitants of the country, of whom no estimate had been 
taken, he had no right to count the minorities in each of these States as 
supporting the amendment. It is highly probable that, estimating for a 
majority of the nation as a mass of individuals, it was against the amend- 
ment. See remarks of Mr. Fiuck, of Ohio, on the same occasion. Cong. 
Globe, p. 1333. 



THEORY OF OUR NATIONAL EXISTENCE. 245 

Debates on the Louisiana Bill. 

sections for military governments, as they stood in the 
original bill, seemed to have entertained a very simple 
theory of absolute dominion, whether founded on the 
guaranty clause, or on a doctrine of conquest, or on one of 
State-lapse. This was by some senators combined with 
the assumption that a new basis for government, in all 
the States, in universal " manhood suffrage " had, by 
some undescribed popular decree, become a part of the 
public law ; or this may be taken as a new interpretation 
of the term " republican government " in the guaranty, as 
made known to them by something akin to a revolution. 

There were, however, several other bills pending during 
the two sessions of the Thirty-ninth Congress which gave 
occasion to arguments founded on the guaranty clause ; 
the question of power being the same as that presented by 
the Act of March 3, 1867. 

At the time Mr. Stevens's bill was under discussion, a 
bill relating to Louisiana alone had been proposed, 1 which 
passed in the House only, being dropped in the Senate 
and in fact rendered superfluous by the more general 
application of the other bill. It contained provisions, 
somewhat similar to those incorporated into the other bill, 
for determining the elective franchise in the State. For 
this reason the arguments drawn from the guaranty clause 
in justification of those provisions would be of equal appli- 
cation to similar provisions in the other bill and, if used 
by speakers who were prominent as supporters of the lat- 
ter, are of equal significance as indicating the view taken 
by the majority. 2 

1 Reported from the select committee on the New Orleans riots by Mr. 
Eliot, of Massachusetts, Feb. 11, 1867, Cong. Globe, 2d Sess. 39th Cong. 
p. 1129; House Bill, 1162, entitled a " Bill for the Re-establishment of Civil 
Government in the State of Louisiana," which passed the House Feb. 12, 
1867, — yeas, 113; nays, 30. Cong. Globe, p. 1175; Wilson's Hist. Rec. 
pp. 329, 333. The substance of the various sections of the bill was given 
by Mr. Shellabarger in his remarks of Feb. 12, 1867. Cong. Globe, p. 1173. 

2 Feb. 14, 1867, referring to House Bill No. 1143, the Louisiana Bill then 



246 THE RECONSTRUCTION LEGISLATION. 

Senator Wilson's Position as to "Manhood Suffrage." 

In the debate, Feb. 15, 1867, in the Senate on the 
amendment to House Bill No. 1143, Mr. Wilson, of Mas- 
sachusetts, said : — 

" I believe, Mr. President, that the wisest thing would be to 
pass this bill just as it came from the House, and then to pass the 
Louisiana Bill, and then to pass a resolution reciting the fact that 
the constitutional amendment has been adopted by a sufficient 
number of States, and providing that those States in rebellion 
which will assent to the constitutional amendment, change their 
constitutions and laws in conformity with its requirements, give 
manhood suffrage, and put all its citizens, without distinction of 
color or race, under the equal protection of the laws, so that they 
may engage in all the avocations of life, have the benefits of the 
public schools, and stand on the same ground with all others, pro- 
tected by just, humane, and equal laws, shall be thereupon entitled 
to representation in Congress by those who can take the prescribed 
oath. . . . 

" Sir, universal manhood suffrage has ceased to be a contested 
issue in America. Although it is not yet incorporated into consti- 
tutions and laws, it is just as much an achieved fact in the ten 
rebel States as it is in the District of Columbia, the State of Ten- 
nessee, or the Territories. The battle of manhood suffrage is fought 
and won ; all we have to do now is to provide for the formal incor- 
poration of that principle into constitutions and laws." 1 

On Feb. 12, 1867, the Louisiana Bill being then in 
order, Mr. Shellabarger, a representative from Ohio, re- 
marked : — 

being in order in the Senate, Mr. Sumner said (Cong. Globe, p. 1803): 
" I am in favor of each of these bills. Each is excellent : one is the begin- 
ning of a true reconstruction ; the other is the beginning of a true protec- 
tion. Now, in the rebellious States, there must be reconstruction and there 
must be protection. Both must be had, and neither must be antagonized 
with the other. The two should go in side by side," &c. 

1 Globe, p. 1365; Wilson's Hist. p. 352. See also remarks by Mr. Allison, 
of Iowa, in the House, Feb. 12, 1867. Globe, p. 1181. It would appear from 
these remarks that there was something or somebody superior to the Constitu- 
tion and laws they had sworn to support, to whom senators and representa- 
tives had to look before voting. 



THEORY OF OUR NATIONAL EXISTENCE. 247 

Citation of Luther v. Borden, by Mr. Sliellabarger. 

" This important bill is precisely what its title indicates, one 
' To provide a Civil Government for Louisiana.' The bill assumes, 
as the truth upon which it is based, a proposition that was uttered 
by him who administered the government before the present acting 
President of the United States came into power, 1 and which was 
repeated by the latter, — that these revolted States have lost their 
civil governments. It assumes nothing beyond that. It does not 
touch what has been to some extent the controverted question, 
whether their condition is exactly analogous to Territories or not. 
It simply attempts to restore to those States civil governments, 
nothing more, nothing less." 

To this extent the argument was in harmony with that 
of Mr. Bingham on the other bill ; but in the remarks 
immediately following, a different view of the action pro- 
posed is taken. Mr. Shellabarger proceeded to say : — 

" Now let me remind gentlemen on the other side, who have 
asserted so earnestly that this bill is unprecedented in its legal 
aspects, that they forget that the Supreme Court of the United 
States, in a well considered case, and by an opinion which, accord- 
ing to my present recollection was unanimous, decided that the 
government of the United States, in its Congress, has the identical 
power upon which this bill proceeds, to wit, the power to decide 
whether the government in a given State is republican or not ; and 
if it be found to be not of that character, to set it aside. 

" That was decided in the celebrated Rhode Island case, so 
perfectly familiar to every gentleman of the House who is at all 
versed in these legal questions. . . . The Constitution itself speaks 
about a State being a State notwithstanding it may have lost its 
republican government. . . . He upbraids the bill because it speaks 
of Louisiana as a State. So does your Constitution speak of States 
as things which may be States and yet not have republican govern- 
ments; because it assumes that it is possible a State, in the consti- 
tutional sense, may be a State and yet have lost its constitutional 
government. Is not that alphabetical constitutional law ? . . . 
Remember that you are the representatives of this mighty nation, 
that here the voice of the American people speaks in execution of 

1 Compare as to Mr. Lincoln's view, ante, p. 36. 



248 THE KECONSTRUCTION LEGISLATION. 

Views taken as to the Application of the Guaranty. 

the provision of your Constitution which says that you shall guar- 
antee to the States a republican form of government. After this 
can any gentleman hesitate to carry out the obligation and to fulfil 
the duty imposed upon Congress that we shall see to it that these 
States are republican ? . . . Now that is the point where this bill 
and every other bill proposing to reconstruct the States South must 
rest. It rests on the right and the duty of this part of the govern- 
ment to see that there is kept in each State a republican govern- 
ment. This bill says, we will neither have nor guarantee the 
government which is there now and which rests on a disloyal basis, 

as far as it has any basis at all." 

« 
Remarks of similar tenor were made in this Congress at 

different periods by other speakers. They might seem 
well enough suited, as arguments, to sustain the actual 
provisions of the reconstruction clauses of the Act of March 
2, 1867, and, taken together, might indicate that a portion 
of the majority in each branch founded this legislation on 
the assumption that the governments then existing by the 
will of these States, as political members of the Union, 
were not republican in form ; and that therefore these 
States, though neither conquered States nor lapsed States, 
might, under penalty of exclusion from representation in 
Congress and subjection to military rule, be required 
by the general government, as a superior, to receive 
a certain political organization supposed by Congress to 
answer to the term " republican in form " in the guaranty 
clause. 

The greater number, however, of the arguments sup- 
porting this legislation in each branch of Congress con- 
sisted of propositions similar to those in Mr. Bingham's 
remarks, — that as a consequence of rebellion (that is, 
either the rebellion of the States, as such, or that of their 
inhabitants, as citizens of the United States) against the 
general government as a sovereign, these ten States had 
" destroyed their own governments " as matter of political 
fact, and so were deprived of lawful or legal government, 



THEORY OF OUR NATIONAL EXISTENCE. 249 

View taken by the Supreme Court. 

and therefore, as matter of law, could not be represented 
in Congress ; and, though still States of the United States 
from whose consent the Constitution derived its authority 
as law (as was shown by their being reckoned in the 
calculation for amendments), were " disorganized States," 
and by being so disorganized were subject to the exclusive 
jurisdiction of Congress, whose duty it was under the 
guaranty clause to provide for them such governments as 
it might deem republican (by placing them, as States, 
under military control until a new political people should 
be organized to accept, as a State, certain conditions of 
existence, one of which should be the adoption of a con- 
stitutional amendment enabling Congress to pass such laws 
as had previously been unconstitutional), and so restore 
them, as States, to " their practical relations to the general 
government." 

How far the Supreme Court may have agreed to such 
propositions, it would be difficult to judge. But from the 
language of the several justices already cited, it may be 
inferred at least that, if the court has accepted any action 
of " the political department " as an execution of the guar- 
anty clause of the Constitution, it has been on the suppo- 
sition that, as a political fact, these States were at the 
time without any State governments at all, rather than 
that, having State governments at that time, they were not 
" republican in form." 

This, however, cannot settle the propriety of that ac- 
tion, because, on the confession of the court itself, the 
validity of the action of " the political department " is not 
matter for judicial determination. 

It is, therefore, still open to inquire, How has there 
been any execution of the guaranty in this instance by the 
action of " the political department " ? 

Whatever may, as a legal question, be the proper inter- 
pretation of the clause in the Constitution, the only execu- 



250 THE RECONSTRUCTION LEGISLATION. 

The Case of Rhode Island, as a Precedent. 

tion of the guaranty which had been judicially sustained 
before this instance of State-reconstruction, consisted, — 

1st, In recognizing as already existent a certain definite 
body of electors in a State as being the true political 
people of the State, or as being the State itself, in distinc- 
tion from another more or less definite body of persons claim- 
ing to be the true body of electors, or, as such, the real 
State. 

2d, In recognizing such State as claiming from Congress 
the performance of a duty, i. e., the execution of the 
guaranty given by the United States. 

This was all that had been done on the part of the 
government representing the United States at the time of 
Dorr's rebellion, so-called, in reference to the State of 
Rhode Island. The executive of the United States had 
recognized the body of electors constituted under the old 
charter of the colony, on their corporate claim, as the 
State which could claim the guaranty from the United 
States, in opposition to the self-constituted body also 
claiming to be the actual political people of the State. 1 

This, therefore, was all that was or could, as judicial pre- 
cedent, be decided by the case of Luther v. Borden, to have 
been in accordance with the constitutional provision. 

In Luther v. Borden, 7 How. 39, Chief Justice Taney 
said : " The courts have uniformly held that the inquiry 
proposed to be made belonged to the political power and 
not to the judicial ; that it rested with the political power 
to decide whether the charter government had been dis- 
placed or not." Here, "government" is shown by the 
context to mean the body of electors who, as the political 
people of the State, hold the powers of a State of the 
United States, — not the form of government, as law, 

1 This case, therefore, gives a definition of a State of the United States 
■which justifies its citation in Georgia v. Stanton, ante, p. 48, note, and which 
is contradictory to Chase's definition, ante, p. 9. 



THEORY OF OUR NATIONAL EXISTENCE. 251 

Why no Precedent for Reconstruction. 

which they institute. The political power — those who 
hold the political power of the general government — 
decide, in the sense of recognize, who those are who con- 
stitute the State government in this sense. A power to 
constitute the political people of the State is, therefore, not 
recognized in this judicial precedent. 1 

The precedent given by the Rhode Island case did not 
serve as a guide to the congressional sj^stem of reconstruc- 
tion, because, by the words of the Constitution, the guar- 
anty was to a State ; that is, to some political personality 
as distinguished from any natural persons. The claim upon 
the United States which it created was one which can 
belong only to such a political personality, and as such it 
is to be distinguished from any rights held by natural 
persons under law, which each may individually forfeit by 
rebellion, treason, or other criminal act. 

Under the congressional system of reconstruction, the 
pre-existence of the political personality, that is, of a polit- 
ical people of each of these States, capable as such of 
having a claim under the guaranty, was denied. For, if 
there was any such people at that time, it was that organ- 
ized political people whose action, by a government of their 
own choosing, Mr. Johnson was then sustaining, as his ful- 
filment of the same guaranty, 2 — the same political perjple 
which Mr. Lincoln had regarded as in existence, and which 
had sustained the Secession Ordinances. 

1 The caption of the report is, " The question, which of the two oppos- 
ing governments was the legitimate one, viz., the charter government, or 
the government established by the voluntary convention, has not heretofore 
been regarded as a judicial one in any of the State courts. The political 
department has always determined whether a proposed constitution or 
amendment was ratified or not by the people of the State, and the judicial 
power has followed its decision." 7 How. 1. The political department here 
referred to is, apparently, not a part of the general government, but of the 
State governments. The term " political department " was not Judge 
Taney's. Compare ante, p. 20, note. 

2 See Memoir of B. R. Curtis, i. pp. 383-387. 



252 THE RECONSTRUCTION LEGISLATION. 

The State not found in Loyal Citizens. 

In this, however, Congress was inconsistent ; having 
repeatedly recognized the existence of the same political 
people in these States, as by accepting their action in 
adopting the Thirteenth Amendment and offering the 
Fourteenth to them, before this legislation. 

According to one of the ideas of executing the guaranty 
in the instance of these States, which have had their advo- 
cates, the recipients of its benefit are supposed to have 
been certain natural persons, individual citizens, either such 
as were assumed to have been individually always loyal ; 
or such as had not forfeited, under legislative attainder 
for treason, their personal claims upon the United States 
under the guaranty ; or such as, having been disloyal, and 
having so forfeited their claim, were required to give 
proof of loyalty by accepting a prescribed form of govern- 
ment, under the alternative of continued military rule. 1 

It has, probably, been thought in accordance with the 
precedent furnished by the case of Rhode Island, to say 
that, in the instance of these States, it was competent for 
Congress to discriminate a loyal people as being the State, 
however few in number, as compared with a disloyal 
people, however numerous. 2 

A State of the United States was the body corporate 
acting by a majority of its political people. The loyalty 

1 Compare Mr. Lincoln's language, ante, pp. 35, 36 ; also the statement 
of his view of the subject in Memoir of B. R. Curtis, i: 385-6. 

2 As in Mr. Attorney-General Stanbery's argument for the defendant, in 
Georgia v. Stanton, 6 Wall., so " They [i. e. the State] are precisely in the 
situation pointed out by the Constitution, — a State in insurrection; a lawful 
State warred upon by an unlawful, unauthorized body claiming to be a 
State, using force against force that the rightful State cannot overcome. 
Then comes a case for political interference. Then Congress and the 
President must decide which of the two is the rightful State, and when they 
decide it, it is decided for this court and for all : that is the only tribunal 
that can decide it." The supposition of two States in one political people, 
a lawful people and an unlawful people in one body, suggests the proposi- 
tions offered to the court in Keith v. Clark, as to the State of Tennessee. 
Ante, p. 23. Compare ante, p. 148. 



THEORY OF OUR NATIONAL EXISTENCE. 253 

A Dictum of Ch. J. Taney. 

or disltryalty of individual inhabitants of a State had 
nothing to do with the validity of any claim of the cor- 
porate body. The claim of a State as a corporate body 
did not depend upon any loyalty or disloyalty on its part ; 
because, up to that time, there never had been anybody 
in existence to whom the States, being States of the United 
States, were bound to be loyal. Even if, before 1861, the 
States were bound to be loyal to anybody, it certainly 
was not to Congress, not to the persons who adminis- 
tered the general government, nor to the written Consti- 
tution, which is a thing and not a person. If anybody 
was bound to loyalty to any other person, he was so bound 
to somebody for whom the persons constituting the general 
government were only the agents, under the written Con- 
stitution, and from whom that written Constitution derived 
its force as law. That person, as shown by history, was 
the States united, including these ten States, if they were 
then States of the Union. 

Though it may thus appear that the action of Congress 
in this instance has not been in accordance, as an applica- 
tion of the guaranty clause, with the actual precedent 
furnished by the instance of Rhode Island, it may, perhaps, 
be regarded as the development of a dictum by Chief Jus- 
tice Taney, in the case of Luther v. Borden, 1 as meaning to 
say that the discrimination of the persons constituting the 
political people of the State, as made in that instance, 

1 7 How. 42. " Under this article it rests with Congress to decide what 
government is the established one in a State. For as the United States guar- 
antee a republican form of government, Congress must necessarily decide 
what government is established in a State before it can decide whether it is 
republican or not." In the instance of Rhode Island, neither did the Executive 
nor did Congress undertake to sit in judgment on the nature of the government 
established by the political people of the State. So far as that transaction 
indicated the construction of the clause, it was that the government fulfils 
the guaranty of a " republican form of government " to a State when it 
recognizes and sustains an existing political people as being the State; and 
therefore the judicial dictum was in contradiction to the political precedent. 



254 THE RECONSTRUCTION LEGISLATION. 

A new Construction of the Clause. 

was merely incidental to a duty devolved upon the general 
government to determine whether the State government, 
that is, the formal constitution established b}' that people 
as law, was republican or not in its nature or quality. 

This appears to have been put forward by some persons 
as equivalent to a judicial opinion that it has always been 
within the competency of Congress to decide upon the 
validity of provisions established by the political people 
of each State as their constitution of State government, 
either, — 

1. Because a standard of what constitutes a republican 
form of government has been given by some superior, to 
which each State has been bound to conform ; or, 

2. Because the term " republican government " is here 
equivalent to any form of government which Congress may 
at the time deem republican. 

This is giving an entirely new construction to the clause, 
and one which of itself turns the whole political constitution 
of the country inside out. 1 Heretofore it had been under- 

1 In the debate in the Senate, Dec. 19, 1866, on the condition introduced 
in the bill admitting the State of Nebraska (14 U. S. Stat. 392), respecting 
" the denial of the elective franchise or any other right to any person, by rea- 
son of race or color," &c, Mr. Reverdy Johnson remarked that the power to 
impose such a condition had been placed upon " the guaranty clause," and 
said, " If it can be maintained under that clause, it can only be because a Con- 
stitution which denies to any of the citizens the right to vote is not republican. 
That would lead to very perilous consequences. What State is there in the 
Union that admits everybody to vote who has the age and residence which 
their laws require, even supposing they have a right to prescribe age and 
residence ? Not one, as far as I am advised. Which of the States repre- 
sented in the Convention of 1780, and which afterwards adopted, through 
their people, the Constitution framed by that Convention, admitted all to 
vote who had the prescribed age and residence 1 Not one. ... If it is not 
of a republican form now, it was not then. Can there be a doubt about it 7 
Contemporary construction, to be ascertained by what is not done as well as 
by what is done, is a familiar rule of interpretation, not only persuasive, but 
controlling. . . . Nobody even dreamed that the United States had any 
authority ; and the United States not only never attempted to exert it, 
but, as far as I am advised, no member of Congress, until the last few years, 
ever suggested it." The senator instanced the recent States, — Nevada, 
Oregon, and California. Cong. Globe, pp. 189, 190. 



THEORY OF OUR NATIONAL EXISTENCE. 255 

Revolutionary Effect of tliis Construction. 

stood that the word republic signified a certain self-deter- 
mining body of citizens, having the power, as a corporate 
political personality, to establish, as by their sovereign au- 
tonomy, their own form of government, their own public 
law ; and that a form of government so established was 
the only one which could be called republican. Therefore, 
that which the United States, i. e., the States in union, 
reciprocally guaranteed must have been the possession of 
such a power, by each State as a political people, being in 
union as one of the United States ; they imposing in this 
clause a duty upon those who should, as their servants or 
agents, administer their will under the Constitution. 

By this new construction the positions of the holder of 
the claim and the holder of the obligation are reversed. It 
becomes a power in the governing agent to control the 
existence of those upon whose continuing wills, as posses- 
sors of sovereignty in union, that governing agent had 
depended for its delegated authority. The claim upon the 
agent has been turned into a duty due to that agent ; if it 
is the right and power of the general government to see to 
it that each State, or each political people of a State, main- 
tains a system of public law, such as may, in the estimate 
of that government, deserve the designation of republican. 

By this construction these few w r ords of the Constitu- 
tion, which received little consideration from the Conven- 
tion, 1 become the fundamental provision of the whole public 

1 This provision originated in Resolution No. 11, of fifteen offered, May 
29, 1787, in the Convention, by Randolph of Virginia: "That a republican 
government and the territory of each State (except in the instance of a vol- 
untary junction of government and territory) ought to be guaranteed by the 
United States to each State." Elliot's Debates, i. 45. It was moved and 
seconded, June 11, 1787, to agree to the eleventh resolution submitted by 
Mr. Randolph, amended to read as follows: "Resolved, that a republican 
Constitution and its existing laws ought to be guaranteed to each State by 
the United States. Passed unanimously in the affirmative." lb. pp. 169, 
182, v. 182. In the draft offered Aug. 6, 1787, Art. xviii., it is as it now 
stands. More debate occurred, July, 1787. Elliot's Debates, v. 332. 



256 THE EECOXSTEUCTIOX LEGISLATION. 

"Whether the Guaranty had been claimed. 

law, effecting an entire reversal of that investiture of sover- 
eign power by which the written Constitution became a law; 
because, by this, the political people of the States united, 
from whom it proceeded, are made dependents on the will of 
their own servants as organized under that Constitution. 

But the theory of reconstruction by executing such 
guaranty fails, not only because Congress would not recog- 
nize within the territory of these States an existing polit- 
ical people, capable, as a State, of receiving the guaranty, 
but also because the idea of guaranty presupposes a party 
in existence, who is desirous of the benefit of the guaranty. 

The people of these States — meaning either the political 
people or the mass of the inhabitants — had by their own 
free action spurned the guaranty by rejecting, as far as 
they could, their connection with the United States, the 
guarantors, and with the government instituted under their 
law in the Constitution in which this provision is con- 
tained, and by this abandoned all claims which a State of 
the Union can have, as a State, on the United States, or on 
Congress or the Government as their agent. 

It is besides recorded in the debates in Congress, as 
well as implied by the language of the Reconstruction 
Statutes, that the new amendments were to be forced 
upon the populations of these States, if States they must 
be called, as conditions for their being allowed to reorgan- 
ize a local government, and to appear by representation in 
Congress and to participate in the election for President. 1 

i See Act of April 10, 1869, 16 U. S. Stat. 40, authorizing the submission 
of the Constitutions of Virginia, Mississippi, and Texas to a vote of the 
people, &c. Sect. 6, that before the said States " shall be admitted to repre- 
sentation in Congress, their several legislatures which may be hereafter law- 
fully organized, shall ratify the fifteenth article, which has been proposed by 
Congress to the several States as an amendment to the Constitution." 
Also, the Act of Dec. 22, 1869, ib. p. 59, to promote the reconstruction of the 
State of Georgia. Sect. 8 has a similar proposition. 

In view of these facts, compare, ante, p. 19, citation of the points taken in 
White v. Hart, 13 Wall. 619, and Mr. Justice Swayne's remarks, accepting 

* 



THEORY OF OUR NATIONAL EXISTENCE. 257 

Whether the Conquest Theory may apply. 

If, in the instance of these ten States, there was not 
sufficient evidence that the pre-existing political people 
did not stand in the position of desiderants of the guaranty, 
it is difficult to conceive of a case where it should not be 
wanted. But if the wishes of the pre-existing political 
people were immaterial in this instance, then there was 
really no State of the United States to be consulted ; or 
only a State in Chief Justice Chase's interpretation of the 
word, as being mere land and population within the gen- 
eral domain, 1 and no more a State, capable of receiving the 
guaranty, than any Territory, — prospectively a State. 

As has been already observed, it cannot be demonstrated 
from the debates which accompanied this legislation that 
Congress proposed to act in execution of the guaranty ; 
and, therefore, on allowing all objections to its applica- 
bility in this instance, the question arises, whether this 
legislation should not be accepted as the affirmation of the 
doctrine of a conquest of these States. 2 

But here it is necessary to bear in mind the essential dif- 
ference between the portion of the Act originally known 
as Mr. Stevens' bill, and the part which originated in Mr. 
Bingham's amendments. 

The bill introduced by Mr. Stevens related only to the 
establishment of military governments over the ten States, 
without reference to any reconstruction or restoration to 
an equality with the other States. To sustain the provi- 

the action of Congress as conclusive tis to the voluntary character of the 
State's action. Such statements require the fiction of a loyal minority being 
the State, or of a loyal State conquered by a disloyal one within the same 
State limits ; as was argued by the attorney-general in Georgia v. Stan- 
ton, ante, p. 252, note. 

1 Ante, p. 14. 

2 It is under an exposition of the guaranty clause that Judge Cooley 
indicates " the legislature of the Union " as " the proper authority " for re- 
construction " whenever a State government has been displaced by rebellion 
or other force." The General Principles of Const. Law, &c, p. 197. Judge 
Cooley presents this as a doetrine of constitutional law settled by the de- 
cisions of the Supreme Court in Texas v. White and Luther v. Borden. 

17 



258 THE KECONSTETJCTION LEGISLATION. 

Stevens's Bill founded on the War Power. 

sions of this bill, forming the first four sections of the Act 
as passed, more was necessary than a recognition of the ex- 
clusive jurisdiction of Congress as in a Territory ; whether 
that jurisdiction should have been gained by State-lapse, 
or by international conquest, or in any other way. For, 
whether the general government then held dominion as a 
conqueror after a war, or as legitimate sovereign after a 
suppression of a rebellion, in either case the military au- 
thority should, by constitutional law, be subordinate to the 
civil. 

For this reason, when Mr. Stevens and others who sup- 
ported his bill urged the political rights gained after a con- 
quest, they were in reality claiming the rights of belligerent 
power, as if the state of war still continued, contending that 
the disloyalty of the white population, shown by their 
treatment of the freedmen, and above all by their non- 
adoption of the proposed amendments, made the people of 
these States public enemies as long as this " disloyalty " 
should exist. 1 

1 On the 12th of February, 1867, in his remarks on the Louisiana Bill 
{ante, p. 246), Mr. Shellabarger said, " I shall confine what I have to say 
touching the power of Congress to pass the bill principally to our power to 
employ the military forces for the purpose of enforcing law and order, as this 
bill and the one reported by the Reconstruction Committee do, because, as the 
greater includes the less, if it shall appear that we can use the military force, 
as provided by the bill, a fortiori we can the civil authority also. Are, then, 
the State of Louisiana and its people in that condition and state of fact 
which under our government make it legal to control them by military 
force ? As I said the other day, this is a question of law dependent, for its 
answer, upon a state of fact. That question of fact is exactly this : Is there 
in Louisiana such a remaining state of hostility, insubordination, and rebel- 
lion to and against the authority of the United States as that the courts can- 
not and will not redress personal grievances nor protect the loyal people ? " 
The argument proceeds to apply " the law of nations " as controlling the 
case. Cong. Globe, p. 1174. 

In the Senate, Feb. 15, 1867, on the question of amending House Bill 
No. 1143 {ante, p. 231), Mr. Lot M. Morrill, of Maine, remarked, " When he 
[another senator] talks about the apprehension of being accustomed to mili- 
tary authority and that here is an imposition of military governments, he is 
mistaken. It is no such thing. It is simply in the nature of an article of 



THEORY OF OUR NATIONAL EXISTENCE. 259 

Whether the Conquest Theory may apply. 

This portion of the Act of March 2, 1867, presented, 
therefore, a question of constitutional law, properly so 
called, which was essentially distinguishable from the ques- 
tion of a conquest, as a basis for that system of reconstruc- 
tion which was presented by Mr. Bingham's proposed 
amendments, afterwards incorporated into the same bill. 
But before introducing those propositions, Mr. Bingham 
had repudiated, for himself, the idea of a conquest, by his 
criticism on the bill as introduced by Mr. Stevens. 

In the debate in the House, Feb. 7, 1867, on this bill, 
Mr. Bingham said, — 

" I challenge any man here to-night to point to any statute 
passed by the Congress of the United States, since the opening of 
this revolt on the part of the insurgent States to this hour, that, by 
implication or otherwise, by direction or indirection, intimated the 
dogma of the chairman of the Committee of Reconstruction on the 
part of the House with which he opened this debate, — that those 
insurrectionary States were foreign and conquered country." 

Mr. Bingham proceeded to cite various Acts of the Leg- 
islature in support of his view. Cong. Globe, p. 1080. 

Though it may be proved, as far as anything of the sort 
can be proved, that the idea of conquering or even coer- 
cing the eleven States, as political personalities, had been, 
in words, repudiated by all branches of the government 
from the first, and though it ma} r be clear enough to some 
minds that this idea involves that of international warfare 
between sovereigns, and was a practical recognition of the 
position taken by the eleven States before and during the 
war, still it seems highly probable that by many in Con- 

war, or a rule for the government of the army in a conquered country, and 
that is all it is. Sir, by the triumph of our arms we have overthrown re- 
bellion and civil war. These civil and political communities, recently in in- 
surrection and war, are subdued and at our feet. I assume that there are no 
civil tribunals there, no State governments which we are bound to respect, 
or which it is safe for us to respect and trust." Cong. Globe, p. 1367. 



260 THE RECONSTRUCTION LEGISLATION. 

Conquest and Belligerency : how related. 

gress at the time, as well as by many other more or less in- 
fluential persons, it has been regarded as the true basis for 
the reconstruction of the Southern States, as well as for 
their temporary subjection to military rule. 1 

In every instance of a public war, two belligerent parties 
must be presupposed ; and when a war may have ended 
by the military defeat of one of the belligerents, that bel- 
ligerent must occupy one of two positions in reference to 
the successful party. 

1. The defeated belligerent may be recognized as a politi- 
cal personality, capable, by reason of his pre-existing status 
alone, that is, irrespectively of the amount of military 
force he may have displayed, of exercising the vis bellica, 
being then a belligerent de jure. In this case the war has 
been an international war, whatever may have been the 
titular designation by which the two adversaries had been 
known to each other and to other nations ; and this char- 
acter of the war protects all persons acting under the direc- 
tion of either belligerent from all criminal jurisdiction of 
the victor when hostilities have ceased. 

In this case, whether there will be any change of domin- 
ion over the territory and population of such defeated bel- 
ligerent, such as is meant by the word " conquest," taken 
technically, will depend on the will of the prevailing an- 
tagonist, who may or may not become a conqueror, in the 
technical sense, as well as the victor. 

1 The theory of an international conquest, pure and simple, was, how- 
ever, rarely advocated. One of the most noted expositions was that in 
a speech in the House of Representatives, Dec. 12, 1861, by Mr. M. F. 
Conway, of Kansas, which was of importance principally from being one of 
the earliest assertions of the pow*r of the commander-in-chief to emancipate 
the slaves of a belligerent enemy, which was afterwards supposed to have 
been exercised by Mr. Lincoln. {Ante, p. 195.) To support this, Mr. Conway 
took the position that, when recognized as a belligerent, the Confederate 
States became a distinct nation ; so that treason or rebellion could not be 
predicated of them or of their citizens. Cong. Globe, 2d Sess. 37th Cong., 
p. 82. 



THEORY OF OUR NATIONAL EXISTENCE. 261 

Why a Conquest is excluded. 

2. On the other hand, the unsuccessful belligerent may- 
be distinguishable only as a temporarily organized collec- 
tion of persons, beginning its existence only with the war 
and ending with it, being then a belligerent de facto. All 
persons, who have acted with it, as aiding and abetting it, 
are protected under its belligerent capacity as to acts con- 
nected with military operations ; being thereby exempt 
from civil and criminal prosecutions for damages to prop- 
erty, and for trespass, arson, murder, etc. Yet they remain 
exposed to the penalties of treason at the option of the vic- 
tor, as of a belligerent who has vindicated his pre-existing 
law and political constitution. 

But the same conditions exclude the idea of that change 
of dominion and jurisdiction which we call conquest. The 
victory in this case consists in the confirmation of pre- 
existing dominion and jurisdiction. 

Therefore, with that theory of belligerency which admits 
of conquest as resulting from success, there could be no 
treason and no " disloyalty " ; and with that theory of bel- 
ligerency which admits of punishment for treason or for 
"disloyalty," as resulting from success, there could be no 
conquest. 1 

As the matter now stands in the public law of the world, 
foreign nations are ready to accept that view which ex- 
cludes the idea of a conquest of these States ; because they 
assume that any conquest must be excluded by our own 
view of our internal public law. 2 Yet it may be conjec- 

1 Compare, ante, pp. 164-205. 

2 This was illustrated in the suits brought by the United States in Eng- 
lish courts for recovery of property held during the war by agents for the 
Confederate government. (Ante, p. 173, n.) But where the relations of 
non-resident subjects of neutral nations are concerned, a conquest might be 
supposed ; or more strictly speaking, the rights and obligations of such per- 
sons might be determined as if there had been a conquest, so far as they 
were concerned. This, I think, could have properly been taken as the real 
principle for the decision of the English Vice-Chancellor in United States of 
America v. Prioleau, 2 Hemming and Miller's Chancery Rep. 559, and, with- 



262 THE RECONSTRUCTION LEGISLATION. 

Inferences to be avoided. 

tured that the actual military success of the government 
has, by foreign nations, been regarded as much more in 
the nature of conquest than of suppression of a rebel- 
lion, 1 and that, if the result had been otherwise, the estab- 
lishment of the Confederacy would have been accepted, 
not so much as a result of successful revolution as of 
legitimate warfare to sustain pre-existing political inde- 
pendence. 

According to the view herein taken of the effect of the 
Secession Ordinances followed by civil war, and of the 
limitations which should have accompanied the exercise of 
belligerent rights, the success of the government of the 
United States could have none of the character of a con- 
quest. But this does not involve the conclusion that the 
eleven States would siniply have stood again in their 
former places, like so many truant school-boys, repentant 
or unrepentant, the jurisdiction of the government being 
no less and no more than before, — which was the so-called 
"conservative " doctrine. 2 It would follow from the view 
here maintained as to the operation of the State ordinances, 
followed by the attempt to give them practical effect, that 
the result of the success of the government would be the 

out at all compromising the plaintiffs, might have been recognized by their 
counsel in the case of United States v. McRae, 8 Law Eeports, Equity, 69. 
As far as such subjects of neutral nations were concerned, it was the same, 
whether the Confederate government was a government de facto or de jure. 
In a foreign court of law, the government of the United States might have 
recognized the validity of the relation between the defendant in the neutral 
country, as agent, and the Confederacy, as his principal, and have settled 
with him as succeeding, by conquest, to the claims and obligations of the 
Confederacy, as far as he was concerned, without any compromise of its po- 
sition on its own domain, as towards the rebellion. To take such a position 
in a foreign court would not involve recognition of the Confederate govern- 
ment as a property-holder within the limits of the States. But a different 
view of these cases was taken by Field, J., in the dissenting opinion, in 
Sprott v. United States, 20 Wall. 473. 

1 Compare the citation from Phillimore, ante, p. 134, note. 

2 That is what was so designated at the close of the war. Compare the 
Eeport of the Committee on Reconstruction, ante, p. 42, 43, [a], [cj. 



THEORY OF OUR NATIONAL EXISTENCE. 203 

Judge Sprague's Inferences. 

establishment of its authority, as in a supposed case of its 
re-establishment in a Territory of the United States, after 
a local rebellion ; or as would be the case in the suppres- 
sion of a rebellion in a country under an integral, undis- 
tributed, or unitary government. 

To indicate more clearly what I do not mean to support, 
while rejecting the supposition of a conquest of the eleven 
States, I quote here, from the opinion delivered by Judge 
Sprague in the case of the Amy Warwick, a portion which 
has often been cited in arguments on the question of the 
status of these States after the war. 1 

The portion of the opinion to which I refer is found in 
2 Sprague's Decisions, p. 147. 

"An objection to the prize decisions of the District Courts has 
arisen from an apprehension of radical consequences. It has been 
supposed that, if the government have the rights of a belligerent, 
then, after the rebellion is suppressed, it will have the rights of con- 
quest ; that a State and its inhabitants may be permanently divested 
of all political privileges and treated as foreign territory acquired 
by arms. This is an error, — a grave and dangerous error. The 
rights of war exist only while the war continues. . . . Conquest of 
a foreign country t gives absolute and unlimited sovereign rights. 
But no nation ever makes such a conquest of its own territory. . . . 
The nation acquires no new sovereignty, but merely maintains its 
previous rights. . . . And when, in this civil war, the United States 
shall have succeeded in putting down this rebellion and restoring 
peace in any State, it will only have vindicated its original authority 
and restored itself to a condition to exercise its previous sovereign 
rights under the Constitution. In a civil war the military power is 
called in only to maintain the government in the exercise of its le- 
gitimate civil authority. No success can extend the powers of any 
department beyond the limits prescribed by the original law. That 
would be not to maintain the Constitution but to subvert it. Any 
Act of Congress which would annul the rights of any State under 

1 As in Minority Report of the Committee on Reconstruction, Rep. No. 30, 
39th Congress, part 1, p. 4. Lawrence's Wheaton Int. Law, p. 605, Editor's 
note. 



264 THE RECONSTRUCTION LEGISLATION. 

Inconsistency in Judge Sprague's Position. 

the Constitution, and permanently subject the inhabitants to arbitrary 
power, would be as utterly unconstitutional and void as the Seces- 
sion Ordinances with which this atrocious rebellion commenced. 
The fact that the inhabitants of a State have passed such ordinances 
can make no difference. They are legal nullities : and it is because 
they are so that war is waged to maintain the government. The 
war is justified only on the ground of their total invalidity." 

Judge Sprague, it will be remembered, rested his decis- 
ion of this case on the principles of prize law, applicable 
against alien enemies in international warfare. 1 There- 
fore, in denying the possibility" of the government's acquir- 
ing " absolute and unlimited sovereign rights," as on 
conquest of a foreign country, this portion of his opinion 
was in opposition to that view of the political facts on 
which alone his judgment in the case could be sustained. 
By upholding his decision condemning the vessel, the Su- 
preme Court accepted those premises which conflicted with 
his own limitation of the political consequences of the mili- 
tary success of the government. The court has never, I 
believe, repudiated in terms this portion of his opinion, 
though it has accepted, as not inconsistent with the written 
Constitution, that action of the political department which 
has discredited the judge's exposition of the prospective 
status of the eleven States. 

Still, it may be questioned whether any more intelligible 
and consistent explanation of the prospective position of 
the government, after having asserted the rights of a bel- 
ligerent, has ever been given by the national judiciary than 
that which was attempted in this opinion by Judge 
Sprague in 1862. It was accepted, I believe, at the time 
by all who supported the war measures of the government. 
It was, as far as can be known, the idea which Mr. Lincoln 
entertained, and which he attempted to apply in his own 
methods of reconstruction. It was that to which Mr. 

1 Ante, p. 169. 



THEORY OF OUR NATIONAL EXISTENCE. 265 

Relation of Conquest and State suicide. 

Johnson professed his adherence afterwards, and which 
became the foundation of his disagreement with Congress. 
This opinion was expressly referred to in the Minority Re- 
port from the Committee on Reconstruction as doctrine on 
which the war had been conducted, but according to which 
the measures proposed by the majority were unconstitu- 
tional and revolutionary. 

All that the Supreme Court has done since this opinion 
was delivered has been to accept the political situation 
without being able to explain it. 

The theory of conquest, as in an international war, in- 
volves the supposition that the States composing the Union 
held sovereignty in severalty. It is therefore necessarily 
in contradiction, to the theory of State lapse which I have 
herein presented as a consequence from the fact that the 
States were always sovereign in union, but never other- 
wise. It has been seen, however, that those who in Con- 
gress were known to have held a certain doctrine of State- 
suicide found no difficulty in supporting the bill originally 
introduced by Mr. Stevens, professedly based on the doc- 
trine of conquest, or thought it unnecessary to distinguish 
their own ground for supporting it as being different. But 
the explanation of this is given in the fact that the inten- 
tion of the supporters of that bill was, not reconstruction, 
but to place military above civil authority on the founda- 
tion of a supposed continuing state of war ; which being 
accepted, the political status of the State, as either con- 
quered or lapsed, was matter of indifference. 1 

From the fact that the resolutions of Mr. Sumner of 
Massachusetts, and of Mr. Howe of Wisconsin, in the Senate, 
and of Mr. Boutwell of Massachusetts, in the House, affirm- 
ing a doctrine of State-suicide, were all tabled, 2 it would 

1 Compare ante, p. 254. 

2 Mr. Sumner's Resolutions, Feb. 11, 1864. Macpherson's Hist. p. 322. 
Mr. Boutwell's, Feb. 16, 1864, ib. p. 328. Mr. Howe's Jan. 10, 1866 ; Cong. 
Globe, 15 Sess. 39th Cong. p. 162. 



266 THE RECONSTRUCTION LEGISLATION. 

Other Supporters of Reconstruction. 

appear that it was at no period acceptable to Congress, and 
therefore, though the authors of these resolutions finally 
supported this reconstruction legislation ' of the Thirty- 
ninth Congress by their votes, their arguments in support 
of those resolutions cannot be cited as indicating the 
theory assumed for this legislation. 

As observed already, the arguments by which this legis- 
lation was supported in Congress at the time, are not 
necessarily the only arguments, or the best possible argu- 
ments, to support such legislation. Here, they have been 
cited rather as part of the res gestce, or to show the inten- 
tion of the transaction as a political fact, than as arguments 
by which the accordance of such legislation with the actual 
national existence should be judged. 

It may be that better arguments for such legislation have 
been presented by private citizens, or such as had no po- 
litical functions, as legislators, at this crisis. Such argu- 
ments of course can have no claim to authority, either as 
justification or explanation of the action of Congress, what- 
ever may be the reputation of their authors or their intrin- 
sic merit. Yet, whether intended to support or to oppose 
the actual legislation of Congress, they may assist in indi- 
cating the political theory supposed to have been applied, 
even if they could not be regarded as being on the same 
level, in that respect, with remarks made in Congress itself. 

It will not be difficult to recall the fact that an acrimo- 
nious political controversy at the North accompanied the 
whole course of the secession rebellion, the war, and the 
reconstruction era, expressed not only by forensic discus- 
sions, but in a flood of printed publications. Some of 
these, of a date earlier than the close of the war, have 
already been noticed in connection with the question of 
belligerency. The actual military suppression of the re- 
bellion and the distinct issue raised by the opposition be- 
tween President Johnson and the majority in Congress 



THEORY OF OUR NATIONAL EXISTENCE. 267 

Judge Parker in the North American Review. 

gave occasion to a variety of pamphlet essays, review arti- 
cles, etc., more especially directed to the question of recon- 
struction, which brought out more clearly the differences 
of opinion existing among those who had joined in support- 
ing the government during the war. 

To attempt anything like a critical review of these more 
or less ephemeral productions, as a manifestation of public 
opinion, would of course be a task as hopeless as any analy- 
sis of the multifarious discussions in the journals of Con- 
gress. It is sufficient to notice that the differences of view 
in these publications would, almost of necessity, correspond 
with those seen in the debates in Congress at the same time 
on the same subjects, and that they would answer either 
to the so-called conservative view, or to that founded on 
the guaranty of republican government (either to " disor- 
ganized States," or to States whose institutions were not 
then republican), or to that founded on the conquest 
theory, blended more or less with some theory of a State- 
suicide. 

There are, however, some of these which may here re- 
ceive special notice, not merely from their intrinsic or com- 
parative merit, but more particularly as-written by authors 
of high reputation as individuals, who, at the same time, 
were closely associated with that school of political doctrine 
for which Judge Story and Mr. Webster were leading au- 
thorities. 1 

I think I need feel no hesitation in referring to articles 
published from time to time in the North American Re- 
view, during the period from 1861 to 1867, as eminently 
entitled to consideration as indices of opinion. 

In the numbers in this Review commencing with April, 
1861, and ending with October, 1862, the articles bearing 
most directly on the constitutional questions arising from 
the Rebellion were contributed by the late Joel Parker, 

1 Ante, p. 113. 



THE RECONSTRUCTION LEGISLATION. 



View taken by Judge Curtis. 



Royall Professor in the Law School of Harvard College, 
Cambridge, Massachusetts. 1 

In the latest of these articles is the following passage : — 

" The case stands thus. If the Rebellion is suppressed and the 
seceeding States are 'subjugated,' they return to their places in the 
Union, with all the rights and privileges which they had before ; 
unless by the tenacity of their resistance they aid the abolitionists 
in getting up another revolution founded on immediate emancipa- 
tion, through conquest or State-suicide, and a prostration of State 
rights not warranted by the Constitution." 

The earlier articles contributed by Professor Parker 
were in harmony with this, and agreed with the view 
taken by Judge Sprague in the extract last cited from his 
opinion in the Amy Warwick. Professor Parker's contri- 
butions to the Review were succeeded by others of a dif- 
ferent tenor relating to the same general subject. 2 

Among those who must alwaj-s be classified with the 
"best minds " of any part of the country, was the late B. 
R. Curtis, 3 of Boston, whose letter, July 25, 1866, addressed 
to the so-called Conservative Convention at Philadelphia, 
of Aug. 14 of the same year, may be found in his Memoir 
vol. i., p. 390, in which he sustained the same view as 
against the doctrines of conquest, State-suicide, and recon- 

1 At one time the Chief Justice of the Supreme Court of New Hamp- 
shire. These articles were : July, 1861, The Right of Secession ; October, 
1861, Habeas Corpus and Martial Law; April, 1862, Constitutional Law; 
July, 1862, International Law (supporting the seizure of Messrs. Mason and 
Slidell) ; October, 1862, The Character of the Rebellion and the Conduct of 
the War. 

2 He also published, however, in pamphlet, lectures delivered before the 
Law School, in January, 1865, and January, 1866, entitled Revolution and 
Reconstruction, and in 1869 an address delivered at Dartmouth College, 
New Hampshire, published under the title, The Three Powers of Govern- 
ment. The Origin of the United States, and the Status of the Southern 
States of the Suppression of the Rebellion. The Three Dangers of the 
Republic. 

3 Associate Judge of the Supreme Court of the United States from 1851 
to 1857. 



THEORY OP OUR NATIONAL EXISTENCE. 269 

Views taken by Judge Redfield and Mr. Loring. 

struction by the supposed guaranty of republican govern- 
ment. One paragraph only can here be quoted: — 

" After much reflection, and with no such partiality for executive 
power as would be likely to lead me astray, I have formed the 
opinion that the Southern States are now as rightfully, and should 
be as effectually, in the Union, as they were before the madness of 
their people attempted to carry them out of it ; and in this opinion 
I believe a majority of the people of the Northern States agree." 
ib. p. 393. 

Other gentlemen, also in the legal profession and equally 
well reputed in the same community, advocated in their 
publications a view more in harmony with that given in 
Mr. Bingham's remarks in Congress, which they preceded 
in point of time, than with any other. 

In a letter 1 of Judge Redfield to Senator Foot of Ver- 
mont, dated Boston, Sept. 30, 1865, the writer took the 
position that the State remained unaffected by any ordi- 
nance of secession or any acts of rebellion ; while its politi- 
cal capacities continued vested in the " loyal persons " 
to be found therein ; that, as " the war had demonstrated 
the incompatibility of slavery with the successful opera- 
tion of the national government, it may therefore insist 
upon its abolition by the States;" that, though "the 
regulation of the elective franchise is reserved and con- 
ceded to the States," yet, under the guaranty of republican 
government, they may be compelled to admit the eman- 
cipated slaves to suffrage, because " republican govern- 
ment implies the representation, in some form, of the 
entire population." 

Another publication, sustaining similar views, appeared 
about the same time from the pen of the late Mr. Charles 

1 Printed first in the Rutland Herald, afterwards in pamphlet. Isaac S. 
Redfield, then of the Boston bar, author of several legal treatises, had been 
Chief Justice of the Supreme Court of Vermont. His earlier publication on 
the international aspect of the war has been noticed, ante, p. 205, note. 



270 THE RECONSTRUCTION LEGISLATION. 

Views taken by Mr. Bishop and Mr. Lowell. 

G. Loring, a gentleman of very high standing at the 
Boston bar. A portion of this essay, part ii., ch. i., was 
especially directed in answer to Judge Curtis's letter already 
mentioned. In this publication the power of Congress to 
prescribe conditions for new constitutions of State govern- 
ment was maintained by arguments substantially like those 
afterwards presented in Congress by Mr. Bingham. 1 But, 
in justifying the system of military governments, there was 
a more distinct leaning to some doctrine of State-suicide, or 
of conquest. 

Mr. Bishop, a well-known author and member of the 
Boston bar, in a pamphlet which has already been cited, 2 
stated the case as follows : — 

" The seceded Spates are still States in the Union, but they are 
denuded of their State governments (this is the position of the 
present pamphlet). . . . The United States must clothe the States 
with republican governments under the Constitution, taking for the 
purpose the material which presents itself, namely, the negroes and 
the loyal whites. This last answer brings us again to the doctrine 
which this pamphlet maintains. It is what the writer believes 
to be the doctrine of the law, and in all the discussions which the 
times have brought out, no man has yet appeared to controvert on 
any basis of legal authority this doctrine." 

After the termination of Judge Parker's contributions to 
the North American Review, the articles, for the ensu- 
ing two years, most directly bearing on the political ques- 
tion of the time were contributed by Mr. James Russell 

1 Reconstruction. Claims of the Inhabitants of the States engaged in the 
Rebellion to Restoration of Political Rights and Privileges under the Con- 
stitution. Boston: Little, Brown & Co. 1866. Pp. 126. This pamphlet 
was specially reviewed by Judge Parker in the address delivered at Dart- 
mouth College. 

2 Ante, p. 206, note. Secession and Slavery, or the Effect of Secession 
on the Relation of the United States to the Seceded States and to Slavery 
therein : Considered as a Question of Constitutional Law, chiefly under the 
Decisions of the Supreme Court, embracing also a Review of the President's 
Plan of Reconstruction. A. Williams & Co., Boston. 1864. Second edition. 
1866. 



THEORY OF OUR NATIONAL EXISTENCE. 271 

Mr. Lowell in the North American Review. 

Lowell, of Cambridge, Massachusetts. 1 These articles 
were not merely in opposition to the so-called conservative 
theory upheld by Judge Sprague, Judge Parker, and Judge 
Curtis, but were mainly expository of the idea of a con- 
quest of slavery as a principle personified, rather than of a 
conquest maintaining any particular political supremacy ; 
and asserted a power and duty of Congress to make the 
equality of all persons the basis of State existence, at least 
in the instance of the ten Southern States. This may ap- 
pear from the following extract from the article in the July 
number, 1865, p. 201. 

"What have we conquered? The Southern States? The 
Southern people? A cessation of present war ? Surely not these 
or any of these merely. The fruit of our victory, as it always was 
the object of our warfare, is the everlasting validity of the Declara- 
tion of Independence in these United States and the obligation 
before God and man to make it the rule of our practice. It was 
in that only that we were stronger than our enemies, stronger than 
the public opinion of the world ; and it is from that alone that we 
derive our right of the strongest, for it is wisdom, justice, and the 
manifest will of Him who made of one blood all the nations of the 
earth." 

It can hardly be said of any of these writers, who, against 
the so-called conservative doctrine, supported the power 
of Congress to impose new governments, as republican, 
upon the ten States as " disorganized States," that they 
rested their argument on either the theory of conquest or 
on that of State-suicide, though many passages might be 

1 At that time Professor of the French and Spanish Languages and Lit- 
erature and of Belles Lettres in Harvard College, Cambridge, Massachusetts ; 
afterwards Minister to Spain and to England. The articles were : January, 
1864, the President's Policy. (This called forth the letter from Mr. Lincoln 
to the editors, dated Jan. 16, 1864 : Macpherson's History, 336.) July, 1864, 
The Rebellion : Its Causes and Consequences. October, 1864, The Next 
General Election. April, 1865, Reconstruction. July, 1865, Scotch the 
Snake, or Kill it? January, 1866, The President on the Stump. October, 
1866, The Seward-Johnson Reaction. 



272 THE EECONSTEUCTION LEGISLATION. 

Attitude of these writers towards Webster's opinions. 

found in the publications of each which are consistent 
with one or the other doctrine and with no other. 

Senator Sumner and Mr. Boutwell, both of Massachu- 
setts, were, as has been noticed, pronounced advocates for 
the doctrine of State-suicide as a consequence of the ordi- 
nances of secession followed by actual warfare ; though, 
from their agreement with Mr. Stevens, in reference to his 
bill in the thirty-second Congress, it may be inferred that 
they made little objection to calling it a conquest. 1 

In view of the position occupied in their own State by 
the gentlemen whose individual opinions have just been 
noticed, no one would dispute their right to be mustered 
among the " best minds of New England," and there can 
be little question that they all held, more or less definitely, 
in common with Mr. Webster, those opinions which his bi- 
ographer has described as constituting " the sole ground 
upon which the supremacy claimed by the Constitution, as 
the supreme law of the land, can be maintained." 2 

But, on this question of reconstruction, these gentlemen 
were at loggerheads ; and, whether any of them were right 
or not, it may naturally be asked, What is the value of 
these opinions, if such minds, at such a crisis of their 
country's fate as occurred in 1861-1867, were driven to 
differ so greatly in their application ? 

But, independently of all contradictions which may be 
shown to exist in the various arguments, either in or out 
of Congress, supporting its legislation in reconstruction, 
they are all, politically, worthless. For they all, with the 
apparent exception perhaps of the conquest theory, pure 

1 Mr. Boutwell, in an oration, July 4, 1865, at Weymouth, Mass., pub- 
lished as a pamphlet with the title, Eeconstruction and Its True Basis, 
p. 23, spoke of the doctrine of conquest as though it could be reconciled with 
the theory of a State-suicide. 

2 Ante, p. 115, note. I have been informed that Judge Parker and Judge 
Bedfield were classed politically as Democrats. But, from their writings, 
I infer that they accepted some one of those views taken by the Story and 
Webster school, presented ante, pp. 100-102, under headings iii., iv., v. 



THEORY OF OUR NATIONAL EXISTENCE. 273 

Mr. Sumner's Theory. 

and simple, affirm the possibility of forfeiture, by the 
States, as political personalities, of rights and privileges 
held under the written Constitution as law. But this 
proposition, as a matter of doctrine, rests either on the 
notion that the Constitution can of and by itself operate 
as law, which is the fetish constitution, pure and simple, 1 
or on the assumption that, as matter of political fact, a 
nation or people has been distinguishable from the States 
United ; which nation, the nation by hypothesis, gave and 
had continued to give the force of law to that constitu- 
tion, — an assumption which is contradicted by the history 
of the country 2 before 1861. 

So far as I know of any reasonings supporting a doc- 
trine of State-suicide which had been offered in or out of 
Congress, they are, with the single exception of Dr. 
Brownson's in " The American Republic," from which I 
have largely cited, liable to the same objection. 3 

This, I think, may appear particularly obvious in the 
resolutions offered by Mr. Sumner in the Senate, Feb. 11, 
1862, 4 entitled " Resolutions declaratory of the relations 

1 Ante, p. 100. 

2 Ante, p. 113. 

8 An article contributed by me to the " American Law Review " for Jan- 
uary, 1867, vol. i. pp. 1-25, entitled Theories of Reconstruction, presents an 
analysis of the different plans or methods offered at that time, as being all 
founded on the idea of enforcing such a law, with a brief statement of that 
solution of the question, which is here again supported as the true or actual 
one. In the conclusion of this article I had mentioned a series of letters in 
" The Nation," vol. i. Nos. 1, 18, 21, 23, 25, 26 (from July 6, to Dec. 28, 
1866), by Mr. George P. Marsh, as sustaining the doctrine of State-suicide 
on a theory of national existence like that presented by Dr. Brownson. On 
further examination of these letters, however, I find that the writer had 
adopted the view of the Constitution derived from a hypothetical people or 
nation, and acting on the States as municipal corporations under law; his 
argument being substantially like Mr. Sumner's. 

4 Cong. Globe, 2d Sess. 37th Cong. p. 736 ; Macpherson's Hist. p. 322. 
The more brief and terse resolution offered in the Senate by Mr. Howe, of 
Wisconsin, Jan. 10, 1866, Cong. Globe, 1st Sess. 39th Cong. p. 162, is open 
to the same objection, speaking of " political functions formerly granted " 
to the people of these States. 



274 THE RECONSTRUCTION LEGISLATION". 

Mr. Sumner's Resolutions. 

between the United States and the territory once occupied 
by certain States, and now usurped by pretended govern- 
ments, without constitutional or legal right." 
The preamble recited — 

" Whereas certain States, rightfully belonging to the Union of 
the United States, 1 have, through their respective governments, 
wickedly undertaken to abjure all those duties by which their con- 
nection with the Union was maintained, to renounce all allegiance 
to the Constitution, 2 to levy war upon the national government, and, 
for the consummation of this treason, have unconstitutionally and 
unlawfully confederated together, with the declared purpose of 
putting an end to the supremacy of the Constitution within their 
respective limits, . . . and whereas the extensive territory thus 
usurped by these pretended governments and organized into a 
hostile confederation belongs to the United States as an inseparable 
part thereof, under the sanctions of the Constitution, to be held in 
trust for the inhabitants in the present and future generations, and 
is so completely interlinked with the Union 3 that it is forever de- 
pendent thereupon ; and whereas the Constitution, which is the 
supreme law of the land, cannot be displaced in its rightful opera- 
tion within this territory, but must forever continue the supreme 
law thereof, notwithstanding the doings of any pretended govern- 
ments acting singly or in confederation in order to put an end to its 
supremacy, Therefore — 

1. Resolved, that any vote of secession or other act, by which 
any State may undertake to put an end to the supremacy of the 
Constitution within its territory, is inoperative and void against 
the Constitution, and, when sustained by force, becomes a practical 
abdication by the State of all rights under the Constitution, while 

1 This suggests the inquiry, Is " the union of the United States " some- 
thing different from the union of the States or from the United States? 

2 Allegiance is never due to a law. It can only be due to some person 
or persons. The position of a State in the Union with the other States had 
not been matter of duty; because the possession of sovereignty, either alono 
or with others, cannot be under law. 

3 If Mr. Sumner had ever defined what he meant by " the United States " 
and " the Union," or, perhaps, had himself had a definite conception on the 
subject, he might have framed resolutions which would have received more 
attention. 



THEORY OF OUR NATIONAL EXISTENCE. 275 

Weakness of the Conservative View. 

the treason which it involves still further works an instant forfei- 
ture x of all those functions and powers essential to the continued 
existence of the State as a body politic, so that from that time for- 
ward the territory falls under the exclusive jurisdiction of Congress, 
as other territory, and the State, being according to the language 
of the law felo-de-se, ceases to exist." 2 

If the question had been one which could have been 
considered from the lawyer's point of view, that is, as a 
question to be settled by a law, the strength of the argu- 
ment would have been altogether with the so-called con- 
servative doctrine, — the view taken by Judge Sprague, 
Judge Curtis, Judge Parker, by Mr. Johnson, and also, to 
some extent, by Mr. Lincoln. 

But when the result of military operations allowed the 
general government, as the prevailing belligerent, to show 
by its action as a government, 3 that it had vindicated the 
power of a sovereign against rebellion, this view of the 
matter, as a question of law, disappeared of necessitj^. 
For the assumption on which it rested — that the States 
were the personalities under the law — was inconsistent 
with the idea of any treason in private individuals, or with 
any rebellion, in the ordinary sense ; and, logically, it pre- 
sented the alternative, — either the assertion of rights of 
conquest under the law of international warfare, or, if 
such a conquest were abandoned, the recognition of the 
eleven States at the end of the war, as standing in the 
same position as before 1861. 4 

1 Treasonable abdication is contradiction in terms. A person who is in a 
situation to abdicate a right or power cannot be under an obligation to any- 
body to exercise that right or power. And, how can a person forfeit what 
he has already abdicated? Or what is abdication or forfeiture by "void" 
action 1 

2 To make the parallel good, Mr. Sumner must have meant that the fact 
of death depends on the answer to the question of felony or no felony ; to 
be given when inquest is held over the body. 

8 Compare the general proposition at the beginning of the first chapter. 
4 Mr. A. H. Stephens, the vice-president of the government organized by 
the Confederacy, was consistent in taking this position, saying in an address 



276 THE KECONSTRUCTION LEGISLATION. 

Other Views of State-suicide. 

The method which I have followed, in looking to 
the action of the government as indicative of the political 
theory to be determined, does not require that I should 
refer to the reasoning of anyone, however distinguished 
for legal or political knowledge, either in or out of Con- 
gress, as authority for the support of any doctrine I may 
have arrived at independently. 

But from various statements made by several well-known 
advocates of some doctrine of State-suicide, 1 I cite one 
passage as expressing a view the nearest to my own. 

before the General Assembly of the State of Georgia, Feb. 22, 1866, 
" Another of our present duties is this : We should accept the issues of 
the war and abide by them in good faith. This, I feel fully persuaded, it is 
your purpose to do, as well as that of your constituents. The people of 
Georgia have in convention revoked and annulled her ordinance of 1861, 
which was intended to sever her from the compact of Union of 1787. The 
Constitution of the United States has been reordained as the organic law of 
our land. Whatever differences of opinion heretofore existed as to where 
our allegiance was due during the late state of things, none, for any practi- 
cal purpose, can exist now. Whether Georgia, by the action of her conven- 
tion in 1861, was ever rightfully out of the Union or not, there can be no 
question that she is now in, so far as depends upon her will and deed. The 
whole United States, therefore, is now without question our country, to be 
cherished and defended as such by all our hearts and by all our arms. 

" The Constitution of the United States and the treaties and laws made in 
pursuance thereof are now acknowledged to be the paramount law in this 
whole country. Whoever, therefore, is true to these principles, as now 
recognized, is loyal, as far as that term has any legitimate use or force under 
our institutions. This is the only kind of loyalty and the only test of loy- 
alty the Constitution itself requires. In any other view everything pertain- 
ing to restoration, so far as regards the great body of the people in at least 
eleven States of the Union, is making a promise to the ear to be broken to 
the hope. All, therefore, who accept the issue of war in good faith, and 
come up to the test required by the Constitution are now loyal, however 
they may heretofore have been." 

1 Mr. Sumner seems to have recoiled at times from accepting fully the 
consequences of his own propositions; as in the remarkable debate in the 
Senate, Dec. 19, 1866, on the admission of Nebraska, in which senators Wil- 
son, of Massachusetts, Doolittle, of Wisconsin, Fessenden, of Maine, and 
Johnson, of Maryland, participated. "Mr. Doolittle. — He (Mr. Sumner) has 
insisted that the constitutional amendment could not be submitted to the 
States of the South, because he has always consistently maintained that 
there were no States there to submit it to. Mr. Sumner. — Not precisely. 
No State governments. Mr. Doolittle. — No legislatures. Mr. Sumner. — No 
valid legislatures." Cong. Globe, p. 192. 



THEORY OF OUR NATIONAL EXISTENCE. 277 

Mr. Boutwell's Statement of State-suicide. 

In a debate in the House of Representatives, Feb. 16, 
1864, Mr. Boutwell said : 1 — 

" If the gentleman ask me whether there he the right in this 
country 2 to prevent the people of Arkansas going out of the 
Union ? I say, Yes : but if he asks me whether there be any con- 
stitutional power by which we can prevent the people of Arkansas 
from declaring that their State organization has ceased to exist ? I 
say, No. That is a matter within their own control, as a fact ; 
and you cannot escape from a fact, whatever your reasons and 
theories may be. By the voice of the people of Arkansas, their 
State organization has ceased to exist. 3 What remains ? The juris- 
diction of the general government under the Constitution over the 
territory of Arkansas exists unimpaired, exactly as it was before this 
so-called ordinance of secession was passed ! What more remains ? 
Jurisdiction and sovereignty over the people of the State of Arkan- 
sas, neither more nor less than it was before the act of secession was 
passed. 4 What is the condition of the people ? Speaking legally 
and also as a matter of fact, 5 they have just those rights which they 
can enjoy without a State organization. Of what are they deprived ? 
Of those privileges under the Constitution which can be enjoyed 
only through a State organization." 6 

i Cong. Globe, 1st Sess. 38th Cong. p. 683. 

2 The answer to the question, what " this country " had a right to do, 
depends on the question what " this country " then was. 

3 Their voice had declared only the intention that the State should no 
longer be one of the United States. Mr. Boutwell had not shown how this 
was " declaring that their State organization had ceased to exist." 

4 This is a material inconsistency. To say that the State ceased to be a 
State and became a territory of the United States, is to say that the per- 
sons possessing jurisdiction and sovereignty have been changed. The 
sovereignty itself is indeed neither more nor less, and it was always vested 
in the States united. But the jurisdiction of the general government over 
the territory was entirely changed, becoming exclusive. 

6 It is speaking politically, that is, about a fact, and therefore not "speak- 
ing legally." 

6 This shows that Mr. Boutwell regarded the termination of State ex- 
istence as following, by operation of law, on " the declaration " of the people 
of Arkansas ; as if the organization of a State was like that of a municipal 
corporation under a charter. In my view, the " privileges " of a State were 
not " under " the Constitution at all. If the " privileges " of the States in 
union did not pre-exist, there was nothing to make the Constitution law for 
anybody. 



278 THE RECONSTRUCTION LEGISLATION. 

Theory of Ideas acting as Law. 

It will be observed that I have not accepted any argu- 
ment which may be detected in the propositions here cited 
from Mr. Sumner's and Mr. Boutwell's remarks ; and to 
avoid as much as possible the liability to be misunderstood, 
I desire to point out how entirely distinct the political con- 
clusion as to State-lapse, which is founded on the original 
investiture of sovereignty in States united, is from any 
founded on ideas of political justice, assumed to have the 
force of law independently of all connection with the known 
will of a visible possessor of sovereign power. 1 

The State-suicide argument, as it has been commonly 
presented, was dependent on the assumption not only that 
the Constitution was a law acting on the States, but that, 
as law, it comprehended those ideas of right and wrong 
which those who supported that conclusion approved, as 
private individuals. 2 It was on account of the motive to 

1 " They who orginate and enforce ideas decide in a large measure what 
the government shall be and what it shall do, although the work of govern- 
ing is usually in the hands of others. But it is not wise to deny the force 
of ideas, and it is the necessity and duty of the statesman to accept and 
reject ideas in preparing himself generally, and in special cases often, for 
the duties of his position. . . . The idea of liberty and equality, to which 
Mr. Lincoln was pledged, demanded the immediate and unconditional eman- 
cipation of all the slaves in the United States. ... As the waste and hor- 
rors of war increased, the number of those who thought that States could 
engage in an attempt to overthrow the Constitution, without losing any of 
their rights under it, gradually diminished. Finally, the idea in its fulness 
could be accepted and enforced." — Xorth Am. Rev., Dec. 1879, p. 543, ar- 
ticle " Young Men in Politics," by Mr. G. S. Boutwell. 

2 This assumption was equally acceptable to some who based the recon- 
struction legislation on the guaranty clause. (Ante, p. 260.) It has been com- 
monly attempted to veil its purely arbitrary character under another equally 
arbitrary assumption ; that is, that the words of the Declaration of the Inde- 
pendence of the colonies are not to be read as the proclamation of a political 
purpose merely, but as having the force of a statute law or bill of rights, 
and that the introductory propositions are to be taken as the legal founda- 
tion for all private relations, to be received by the States as if they held 
their existence under some law contained in the same document. For illus- 
tration see Senator Howe's speech on his resolution of Jan. 10, 1866 ; Wil- 
son's Hist. pp. 25, 36 ; Cong. Globe, 1st Sess. 39th Cong. p. 163. Also, the 
citation from Mr. J. R. Lowell, ante, p. 271. 



THEORY OF OUR NATIONAL EXISTENCE. 279 

The political Motive is immaterial. 

support slavery that the action of the Southern States was 
censurable, or at least wicked enough to draw down ex- 
tinction of political existence. This, in fact, was the basis 
of Mr. Sumner's and Mr. Boutwell's argument for their 
coroner's verdict of State-suicide. 

The political consequences of a clearly expressed intent 
on the part of the people of a State to separate from the 
other States, as I have presented them, follow without ref- 
erence to the moral character of the considerations indu- 
cing the political act. Whether some States are necessarily 
superior to others in the faculty of conceiving moral ideas 
is immaterial. None can claim an exemption from the con- 
ditions of their political existence. The consequences of 
attempting separation follow, when the purpose of the 
State is to sustain human rights and republican forms of 
government, as when it is to sustain slavery and anti-repub- 
lican institutions ; whatever may be the standard of human 
rights and of republican government. 1 

The inconsistencies in each of the different views offered 
on the reconstruction question were fully enough exposed, 
at the time of their discussion, by opponents severally ad- 
vocating positions equally inconsistent. 

But to cover up these contradictions, or speaking more 
charitably and perhaps also more truthfully, to hide them 
from their own consciousness, those who succeeded in lead- 
ing the policy of Congress at this crisis resorted to fictions 
like those called " legal fictions " in the common law. 

Of these the principal one was that these ten States had, 
by their own act, without any external coercion as of a 

1 Judge Parker, in the lecture on Revolution and Reconstruction (ante, 
p. 260, n.), p. 20, says : " We may here see the utter folly of the position 
that a State, attempting to secede, thereby becomes felo-de-se and a territory. 
Suppose Massachusetts had withdrawn from the Confederation, into what 
condition would she have fallen territorially ? This is a fair test." Perhaps 
Mr. Sumner would have made a distinction. But I should say that what 
was sauce for South Carolina would be sauce for Massachusetts. 



280 THE RECONSTRUCTION LEGISLATION. 

Effect of not taking the Oath to support the Constitution. 

conqueror, though without any intention on their parts, 
deprived themselves of their own governments ; that is, of 
those governments which are State governments because 
the States, or the political people of those States, have in- 
stituted them or caused them to exist. 

It may be conjectured that many persons have regarded 
this as a legal consequence from the provision in Article 
VI. of the Constitution : " The members of the several 
State legislatures and all executive and judicial officers, 
both of the United States and of the several States, shall 
be bound by oath or affirmation to support this Constitu- 
tion." 

It may be argued that, unless the persons who may as- 
sume the functions of the State governments do actually 
so bind themselves by oath or affirmation, they will not be 
invested with those functions ; so that, if all so omit to do 
this, there will be nobody to be a government. 1 In point 
of law, the State officials are none the less bound to sup- 
port the Constitution, though omitting to take such oath or 
affirmation. The obligations of the citizen to respect and 
obey the laws are not dependent on his own choice. But, 
admitting the conclusion against the existence of a State 
government, the question is, What political power or duty 
devolves upon the general government in the premises ? 

It would be contradictory action on the part of such per- 
sons, so assuming the functions of a State government 
without regarding this provision, to undertake to join in 
the election of a President of the United States, or to send 
senators and representatives to Congress. But supposing 
that this should be attempted, it is clear that it would be 
for Congress, in judging of the qualifications of its several 
members, on legal proof of the facts, to reject the claim of 
such persons. Again, if the acts of such persons assuming 
State functions within the State are made the foundation 

1 As in Mr. C. G. Loring's pamphlet on Reconstruction, p. 33. 






THEORY OP OUR NATIONAL EXISTENCE. 281 

Words as supplying the Want of Ideas. 

of legal claim to rights and obligations, they would, on 
legal proof of the facts, be regarded as null in courts of the 
United States. 

But whether any political action can be taken in the 
case by any department of the general government is a 
matter for which no provision is found in the Constitution, 
as law. If " the political department," whatever that may 
be, can take any coercive measures in the premises, it must 
be on the foundation of a State-lapse, 1 either as herein 
maintained or on some other ground. 

Von Hoist, in his work on the American Constitution, vol. 
i., p. 15, quotes some German, saying, " Wo die Begriffe 
fehlen, da stellt zu rechter Zeit ein Wort sich ein," which 
may be translated, "Where definite conceptions are want- 
ing, there, a word opportunely introduced may supply the 
place." At the close of the war, none of those whose fortune 
it was to direct the action of the government had any defi- 
nite conception of the actual person holding that sovereign 
power which had just been vindicated against a rebellion ; 
and so, words, like " disorganized States," " States deprived 
of their governments," " States out of their practical rela- 
tions to the government," stepped in and carried the day. 

The political transaction indicated in these phrases was 
supposed to have occurred at the very time when the func- 
tions of the State governments had, as a fact, continued to 
be exercised, and that too with a strong hand, during the 
war, and when the parties exercising such functions as the 
State governments had been recognized as belligerents by 
the government of the United States, and, for a long period, 
and even to the very date of this congressional reconstruc- 
tion, had been invited to ratify, as if by their free consent, 
two articles of amendment to the Constitution of the 

1 This appears to have been Senator Howe's position in remarks support- 
ing his resolution offered Jan. 10, 1866. Cong. Globe, 1st Sess. 39th Cong, 
p. 164. 



282 THE RECONSTRUCTION LEGISLATION. 

The Question is not one of Law. 

United States, and while the Supreme Court was daily- 
sustaining the action of such governments in their several 
departments as the foundation of legal relations. 1 

Th'e only basis for the actual reconstruction measures of 
Congress being either the theory of conquest or of State- 
lapse, those measures were an assertion that, within the 
limits of the ten States of the former Confederacy, there 
was no political people participating in that sovereignty 
which, as a unit, is held by the United States, as recognized 
by other nations, and which gave to the written Constitu- 
tion the authority of law within those ten States, as within 
every portion of the national domain. 

As a consequence, no one of these States had the capa- 
city to adopt an amendment to the Constitution, as a State 
to be counted in estimating the requisite three fourths. 
Those adopted since the close of the war were in fact 
adopted by the authority of the States choosing to continue 
in that Union in which only they had had independent po- 
litical existence. 

The ten States were literally to be reconstructed ; or, 
more pointedly, new States were to be constructed in their 
places, which could come into being only as the majority 
of the individuals composing each new political people 
should accept the amendments as part of an existing con- 
stitution ; as do the political people of a Territory which 
has never been known as a State. 

The question presented by the circumstances of that 
time, being outside the domain of all law, was of necessity 
outside the domain of the Constitution, as law ;* and there- 
fore it was a question which could not be settled by the 
Supreme Court. 2 

1 Ante, p. 7. 

2 This was also the proper answer to the suggestion made by Senator Doo- 
little, of Wisconsin, and others, Dec. 12, 1865, when the joint committee on 
these matters was first proposed, that the question of reconstruction should 
be referred to the judiciary committee. Wilson's Hist. p. 18. Cong. Globe, 
1st Sess. 89th Cong. p. 25. 



THEORY OF OUR NATIONAL EXISTENCE. 283 

Mr. Reverdy Johnson's Argument. 

During the discussion in the Senate of those clauses of 
the fifth section of the Act of March 2, 1867, which related 
to the adoption of the fourteenth article of amendments 
by the States named in the bill, Feb. 15, 1867, Mr. Sum- 
ner proposed to designate plainly that the article would 
be in force when adopted by the proper proportion of the 
States then represented in Congress ; that is, excluding the 
ten States from the whole number. Cong. Globe, p. 1393. 

On this point Mr. Reverdy Johnson remarked, " When 
will the Constitution be amended by the ratification of 
three fourths of the States that are represented? Who is 
to decide that? That is an open question, and must be an 
open question just as much after you have declared that it 
is to be a part of the Constitution when ratified by three 
fourths as if you leave it blank. If, in point of law, 1 the 
States that are now represented are the States to whom is 
to be referred, and by whom is to be ratified, the constitu- 
tional amendment proposed by Congress, then the Consti- 
tution of the United States will be altered in that respect ; 
but if it is to be submitted to more than the States that 
are represented in Congress, that is to say, to all the States, 
the question will be open whether Congress declares it or 
not, and that is a question of constitutional law which 
Congress cannot decide by any declaration. It may go 
for what it is worth, that in the opinion of Congress (if 
that should be the action of Congress), the Constitution 
may be amended by the ratification of three fourths of the 
represented States ; but whenever the question arises be- 
fore the judiciary it will be governed by other considera- 
tions. It must be governed by what is the meaning of the 

1 The question, What are the States of the Union, and what are not ? 
must always have been of the same nature, at the first day that there were 
United States, as at any time afterward. If the Supreme Court could deter- 
mine, at any time after 1861, how many States composed the Union, as 
matter of law, it might have decided at the beginning whether there were 
thirteen or a greater or a less number. 



284 THE RECOXSTKTJCTION LEGISLATION. 

The political Fact left in Doubt. 

Constitution in that particular, and be governed by what 
the courts shall decide is the condition of the States that 
are not represented. If the courts shall be of opinion that 
the States which are not represented in Congress, are still 
States, then they will certainly decide that a ratification 
by three fourths only of the States that are represented 
will not make a change in the Constitution." Cong. Globe, 
p. 1393. 1 

The possession of sovereignty can only be known by its 
successful assertion. Anybody may, in words or by force, 
dispute any such assertion, taking the risk of being dealt 
with as a traitor under a law resting on that successful 
assertion. Courts of law must of necessity profess to 
carry out the will of some one or more persons who have, 
as matter of fact, successfully asserted the possession of 
sovereignty over certain territory. 

The question in this instance is, Whom does the Su- 
preme Court recognize as the persons who, having asserted 
that they held or exercised sovereign power in the domain 
known to the world as that of the United States, -proved 
it by actually exercising it ? 

"Will the Court recognize among those who succeeded 
in their assertion of the possession of sovereign power in 
the domain of the United States any who said of them- 
selves that they were not among those States ? 

The principal defect in the actual reconstruction meas- 
ures has been that the political truth which sustains the 
action of Congress has been obscured by its legislative lan- 
guage ; when it might have been manifested, both by 
word and action, by instituting territorial governments in 
the places of these ten States, or by organizing and admit- 
ting a new State out of contiguous portions of those former 

1 These remarks, by one of the ablest lawyers in the country, afford 
another illustration of the fatal defect of looking at the political question 
from the lawyer's point of view. 



THEORY OF OUR NATIONAL EXISTENCE. 285 

The present Question of Allegiance. 

States, to be a visible memorial of the political fact on 
which the Constitution had always, as law, rested, — that, 
except in voluntary union with the other States, there is 
no such thing as a State of the United States. 1 

But it is the fact of to-day which concerns us of to-day. 
The question of allegiance is always one of existing fact, 
not of past fact. History, even the history of the war 
closed in 1865, is of no importance in this respect except 
as it is identified with to-day's life. It is not a question of 
theory, doctrine, or natural right. He, she, or they, whom 
the inhabitants of a country do to-day regard as their sov- 
ereign, is or are their sovereign. The historical question, 
Whom did they so regard yesterday ? is material only as 
yesterday and to-day are one epoch : and, in this light, 
history generally seems to give the answer. 

Whatever may be the truth as to the facts of a century 
ago, it is not of the slightest importance as compared with 
testimony on the question of present fact, — Where do the 
inhabitants of this country to-day find the majestas legibus 
soluta, their ultimate sovereign, whose right of dominion 
may call them personally to hazard their lives and fortunes 
in war against all who would resist it ? 

I have not in these pages proposed a theory 2 to settle 
what can onl} r be a question of fact. 

If the Southern States continued throughout the war to 
be, politically, what they had been, and, as such, were the 
parties belligerent against the government as representing 

1 As was done, in part, by forming West Virginia as a State. Dr. Brown- 
son, in denying the power of Congress to deal so with the territory and 
population (Am. Republic, 317-319), is, I think, inconsistent with his own 
doctrine of State-lapse. It would appear that some members of Congress 
would have approved of instituting territorial governments, but for theii 
distrust of the President's exercise of the appointing power, as Mr. Law- 
rence, of Ohio. Cong. Globe, 2d Sess. 39th Cong. p. 1083. But, if one 
branch of the government has exceeded its powers because it distrusted a 
co-ordinate branch, all that can be said is that the Constitution has proved a 
failure. 

2 Compare ante, p. 98. 



286 THE RECONSTRUCTION LEGISLATION". 

The Question for To-day. 

another belligerent ; or, which is the same, — and for the 
present question even more material, — if the general public, 
North as well as South, and those who in public station 
represent the political people of all the States, North as 
well as South, say that it was so, and that the eleven 
States were, as such, defeated on " wager of battle," as 
one belligerent in a war between Russia and Turkey, or 
France and Germany, may be defeated by the other, and 
that they are still united with the other States because so 
defeated, — then the capacity on the part of each State 
to compel the obedience of its citizens in supporting a 
secession has, as a political fact, been established. 

But this capacity on the part of a State makes the 
attempted secession the exercise of a right which can only 
be controverted as a sovereign right ; which is nothing else 
than "the right of peaceable secession" ("peaceable," — 
that is, as any sovereign right is peaceable ; except as 
contested by international war), which was demanded by 
the Southern doctrine of State sovereignty : 1 and so the 
doctrine of secession, as the affirmation of the political 
right, has been established, while the exercise of the right 
has, as a political fact, been successfully resisted. 

But if this was the true state of the case at the end of 
the war, the practical question still arises, Is the political 
Constitution of the country the same to-day f 

1 Ante, p. 88. 



THEORY OF OUR NATIONAL EXISTENCE. 287 

A Question viewed as an Abstraction. 



CHAPTER VII. 

Popular Dislike of Abstract Conceptions. — Their Necessity in 
Political Discussion. — The Indivisibility op Sovereignty. — 
The Sovereignty of the Political People distinguished from 
Popular Sovereignty.- — Question of a Revolutionary Change 

FOUNDED ON POPULAR SOVEREIGNTY. — Of THE POSITION OF THE 

Judiciary in Reference to such Question. 

On the 11th of April, after the evacuation of Petersburg 
and Richmond and the surrender of the Army of Northern 
Virginia, Mr. Lincoln received, informally, a number of 
citizens before the presidential mansion, and addressed to 
his visitors some remarks, the last public expression of his 
views, * commencing, " We meet this evening, not in 
sorrow but in gladness of heart/' 

The principal subject of the address was " the re-inaug- 
uration of the national authority ; reconstruction ;" partic- 
ularly as a question presented at that moment by the 
political condition of Louisiana. 

In the course of this address, Mr. Lincoln said : — 

" I have been shown a letter on this subject, supposed to be an 
able one, 2 in which the writer expresses regret that my mind has 
not seemed to be definitely fixed on the question whether the 
seceded States, so-called, are in the Union or out of it. It would, 
perhaps, add astonishment to his regret were he to learn that, since 
I have found professed Union men endeavoring to make that ques- 
tion, I have purposely forborne any public expression upon it. As 
appears to me, that question has not been, nor yet is a practically 
material one, and that any discussion of it, while it thus remains 
practically immaterial, could have no effect other than the mis- 

1 Mr. Lincoln's assassination was on the 14th of the same month. 

2 I have not been able to learn anything respecting the letter referred to. 



288 VALUE OF ABSTRACT IDEAS. 

Mr. Lincoln's Expression. 

chievous one of dividing our friends. As yet, whatever it may 
hereafter become, that question is bad as the basis of a controversy, 
and good for nothing at all, — a merely pernicious abstraction. VTe 
all agree that the seceded States, so-called, are out of their proper 
practical relation with the Union, and that the sole object of the 
Government, civil and military, in regard to those States, is to get 
them into that proper practical relation. I believe it is not only 
possible, but in fact easier to do this without deciding, or even con- 
sidering, whether these States have ever been out of the Union, 
than with x it. Finding themselves safely at home, it would be 
utterly immaterial whether they had ever been abroad. Let us all 
join in doing the acts necessary to restoring the proper practical 
relations between these States and the Union, and each forever 
after innocently indulge his own opinion whether, in doing the acts, 
he brought the States from without into the Union, or only gave 
them proper assistance, they never having been out of it." 2 

It was shown by Mr. Lincoln's language on this and on 
other occasions 3 that he had accepted the continued exist- 
ence of the compromised States, and seemed to have as- 
sumed that it was competent for the executive to negotiate 
for the restoration of their " proper practical relations," 
taking the " loyal " inhabitants of each as corporately 
possessed of the functions and capacities of the State. 4 

But a question of his power to undertake this would be 
suggested either by the conservative view, by which they 
were spoken of as in, or by the State-suicide view, by 
which they were spoken of as out. It was, apparently, in 
this effect that the "question" presented itself to his mind 
as " pernicious." 

Whether the term "pernicious abstraction " was original 

1 Sic, but probably should be " within." 

2 Macpherson's Pol. Hist., p. 609. 

3 See Message, Dec. 8, 1863. Ante, pp. 35, 36. 

* It is very likely that both Mr. Lincoln and Mr. Johnson had a general 
notion that the diplomatic functions of the Government, as exercised by the 
executive in intercourse with foreign nations, would be the proper ma- 
chinery for the prospective transaction of restoring the eleven States to 
their " proper practical relations between themselves and the Union," what- 
ever that might be. 



THEORY OF OUR NATIONAL EXISTENCE. 289 

Expressions similar to Mr. Lincoln's. 

or not with Mr. Lincoln, it seems to have been a taking 
one, judging from its repetition by others. 

At a later period, when a majority in Congress were 
about to assume the control of the same subject, on a basis 
nominally similar to that accepted by Mr. Lincoln and by 
Mr. Johnson, that is, that these States were deprived of 
civil government, it was the legislature which treated the 
same "question" with contempt. The majority of the 
Committee on Reconstruction did " not deem it necessary 
or proper to discuss the question whether the Confederate 
States are still States of this Union or can ever be other- 
wise. Granting (they say) this profitless abstraction, about 
which so many words have been wasted," etc. 1 

Considering that the theories of conquest and of State- 
suicide are, apparently, insisted upon in almost alternate 
sentences in the same report, the committee's idea of wast- 
ing words over abstractions seems somewhat obscure. 2 But 
the conclusion intended evidently was that any affirmation 
of State existence or non-existence, which would remove 
the subject from its exclusive jurisdiction, was as "profit- 
less " for Congress as any could have been " pernicious " 
which obstructed Mr. Lincoln's efforts. 3 

1 Ante, p. 43 [d]. The minority of the committee, in their report, very 
naturally took issue as to this expression, saying, "In our judgment, so 
far from this being a ' profitless abstraction,' it is a vital inquiry." 

2 Ante, pp. 42-47. 

3 In the essay already mentioned (ante, p. 260), Mr. C. G. Loring says (p. 
38), " The issue whether the States were to be accounted as in or out of 
the Union, — the question in that form is something worse than a mere 
profitless abstraction ; it is a pernicious play upon words." Mr. J. R. 
Lowell, in the North American Review for April, 1866 (ante, p. 260), says 
(p. 540), "It seems to us the idlest of all possible abstractions now to discuss 
the question whether the rebellious States were ever out of the Union or not, 
as if that settled the right of secession." Mr. Wilson, in his History of Re- 
construction, p. 115, states, " I have said that time was wasted in disputing 
whether these States were in or out of the Union." This language is more 
remarkable from a senator who, at one time at least, said that amendments 
to the Constitution might be adopted without counting the ten States. (Ante, 
p. 260.) Mr. Thaddeus Stevens's remarks, cited ante, p. 227, n., indicate a 



290 VALUE OF ABSTRACT IDEAS. 

Popular Distrust of Abstractions. 

It may be thought, however, that the Supreme Court 
has not equally slighted the question ; having, in the lead- 
ing eases herein cited, so positively affirmed that the com- 
promised States were always States in the Union. 1 But 
what it is to be a State of the Union in view of what had 
transpired, the Court has very partially defined. It may 
have declared that these States are to be deemed to have 
existed, so far as the relations of civil life are concerned ; 
but what it is to be in the Union politically, it has left to 
be settled by a " political department," which, whether 
executive or legislative, has pronounced the question an 
" abstraction," either " pernicious " or " profitless." 

It may be that in so accepting the action of " the political 
department " the Court intended to recognize the recon- 
struction legislation of Congress as the execution of the 
guaranty of a republican form of government to a State? 
But if the action of Congress in this instance has not been 
distinguished from its action in organizing a State from 
a Territory, the question whether the eleven States had 
continued States of the Union has been ignored by the judi- 
ciary, accepting the transaction without an attempt at 
explanation or justification, as completely as it was ignored 
by the executive and legislative departments. 

Aside from all estimates of the correctness of any view 
on this subject which Mr. Lincoln may have taken, his use, 
in this connection, of the word " abstraction " illustrates 
his political sagacity, at least ; or rather, perhaps, his un- 
conscious sympathy with popular methods of thinking on 
political matters. But, if this is the case, it at the same 
time betrays one of the most constant hindrances in all 
discussion of American political questions. Abstractions 

similar indifference to the question, equalled, however, by that shown by 
Mr. Alexander H. Stephens, when taking a somewhat different view of the 
situation. (Ante, p. 280.) 

i Ante, pp. 12, 21, 25. 

2 Ante, pp. 14, 30, 236, 249. 



THEORY OF OUR NATIONAL EXISTENCE. 291 

The Indivisibility of Sovereignty. 

are more practically in use with us than with any other 
political community. 1 More words correspondent to ab- 
stract ideas are required for our political discussions than 
for those of any other political society. It is mainly 
owing to our unwillingness to recognize this, and to de- 
mand a definite use of words adequate to distinguish 
our various political conceptions, that phrases of vague 
and doubtful meaning are so copiously employed in public 
discussions. 

The words, "the country," "the nation," "the peo- 
ple," " the State," " the Union," " the Constitution," 
" the Government," " sovereignty," " subject," " alle- 
giance," " loyalty," " law," " right," "freedom," " slavery," 
are each required to express abstract ideas. But to call a 
question an abstraction — meaning, as far as that can mean 
anything, that it is a question involving definite concep- 
tions of abstract ideas — is quite enough to bar all effort 
to reconcile action with principle, and to give a clearer field 
for any measures supposed to be " practical," because the 
abstract ideas involved have been arbitrarily pushed out 
of view. 2 

In connection with American constitutional law, the in- 
divisibility of sovereign power has heretofore been asserted 
mostly by those who maintained the Southern or States- 
rights view ; while the divisibility of such power, so far 

1 Camp's Democracy, Ch. III. It is when describing the nature of the 
American Union that De Tocqueville (Democracy in America, I., 200) says, 
" The human understanding more easily invents new things than new words, 
and we are hence constrained to employ many improper and inadequate 
expressions." The difficulty, in general, is the subject of Sir George Corne- 
wall Lewis's work on The Methods of Observation and Reasoning in Politics, 
Ch. IV. 

2 In the debate on the 8th February, 1867, in the House (ante, p. 230), Mr. 
Thayer said, " Without regard to any question of political casuistry turn- 
ing upon the question of States in the Union and States out of the Unioni 
one thing let gentlemen depend upon, — that the people, who do not under- 
stand these finespun metaphysical distinctions, will and do insist," etc- 



292 ESTDIVISIBILITY OF SOVEREIGNTY. 

Citation from an earlier Work. 

as asserted at all, has been maintained by writers of the 
opposite school. 1 

In the first volume, published in 1858, of a work con- 
nected with constitutional law as affecting legal cases 
arising out of the existence of negro slavery in a portion of 
the States, I had traced the distribution of sovereign 
powers, as exhibited in the political history of the country 
from the colonial era to the time of the adoption of the 
Constitution. 2 

As the conclusion from that historical review, I had 
stated 3 : — 

" If the language of the Constitution does not hase its authority 
upon or recognize any other theory, and if, for aught that appears 
from it independent of theory, it may be merely declaratory or con- 
stituting, not granting, giving, or conveying (except in the institu- 
tion of a subordinate government) , and if the facts which led to the 
actual customary recognition of the written Constitution do not 
contradict the view, it may be justly regarded as the necessary 
and only doctrine of law, under the instrument, that the powers 
assigned by it to the Government of the United States are equally 
original and sovereign in the hands of a political unity called the 
people of the United States, as the sovereign powers, not so granted 
and not prohibited to the several States, are original in the posses- 
sion of the people of the several States ; that is, the Constitution, 
as a political fact, is evidence of the investiture of certain sovereign 
national powers in the united people of the States, antecedent to 
the Constitution, as well as of the residue of sovereignty in the same 
people in their several condition of the people of distinct States. 4 
It being here taken as a principle, independent of the Constitution, 
that sovereignty is not necessarily, in theory or practically, con- 
centrated in one locality, its place being determined, as any other 
fact, by historical evidence." 

i Ante, p. 106, n. 3. 

2 Law of Freedom and Bondage, §§ 231-235, §§ 830-346, of which the 
summary of the facts, which has been given in Ch. IV. of this essay, is 
an abridgment. [Ante, pp. 123-135.) 

8 lb. § 346. 

4 Compare ante, p. 103, VI. 



THEORY OF OUR NATIONAL EXISTENCE. 293 

The Distribution of Sovereignty. 

The first lines of the passage cited illustrate the liability 
to an error of expression, arising from the habitual intru- 
sion into our political thought of that misconception which 
consists in regarding the possession of sovereign power as 
a right which can be determined by law ; or in imagining 
that, in this country at least, sovereign powers are held 
under the written Constitution as law. The truth is that, 
as the possession of sovereign power is only matter of fact, 
or that which is shown by history, the Constitution, as 
historical political fact, can only be evidence of the exer- 
cise of such power ; and the possession of sovereign powers 
should not here have been spoken of as " doctrine of law 
under the instrument." 

But it is more especially in reference to the indivisibility 
of sovereignty, as a general principle, that I have here cited 
my own earlier statement of the doctrine of its divisibility, 
in concluding which I had observed that " the place " of 
sovereignty is " determined, as any other fact, by historical 
evidence." 

It may not so appear to others, but to me it seems 
that, during the twenty-two years which have elapsed 
since writing the passage above given, some very material 
" historical evidence " has been presented on this precise 
question. 

The old writers distinguished the forma regiminis from 
the forma imperii. The powers of sovereignty have been 
exercised in distribution on this continent from the days of 
the first colonies, — distributed, that is, in exercise, between 
an imperial and the colonial governments ; and afterwards 
between a general or national or federal government 
and the State governments. Such has been the forma 
regiminis. 

Had there been no attempt to separate, it might have 
seemed that the sovereignty was actually divided by the 
forma imperii : part held, as fact above law, by the people 



294 INDIVISIBILITY OF SOVEREIGNTY. 

Mr. G. T. Curtis's Discourse. 

of the States, as one ; and part by the people of the States, 
severally. To me, it seems that a case like Keith v. Clark 
is a crucial experiment. The powers held by the States 
severally cannot, under any theory of the Constitution, be 
sovereign in any sense when the use made of them by the 
State governments is subject to the judgment of any de- 
partment of another government holding the other powers 
of sovereignty. If the power to establish a bank belonged 
to a State before the rebellion 1 and continued to belong 
afterwards, it seems inconsistent to suppose another party 
having a rio-ht to ask about the use made of the bank- 
notes. Powers held by one, over territory and inhabitants, 
cannot be sovereign if they may not be exercised without 
reference to other powers held by another over the same 
territory and inhabitants. 

On the invitation of the New York Society for the Ad- 
vancement of Science and Art, Mr. George T. Curtis, well 
known as the author of the " History of the Constitution of 
the United States " and other publications on kindred sub- 
jects, delivered, March 8, 1875, " A Discourse on the Nature 
of the American Union, as the Principal Controversy in- 
volved in the Late Civil War." This discourse was repeated 
in Philadelphia, April 26, of the same year, and was after- 
wards printed. 2 This discourse, etc., is, so far as I know, 
the only publication which has appeared attempting to 
give a formal statement of the political facts supposed to 
have been in question and to have been settled by the war. 

Independently of the general interest of this contribution 
to political literature, I find it particularly important 
as designating the point or question which I agree with 

1 The power to establish a State bank was not one of the powers 
"usurped " from the general Government by the government of Tennessee, 
according to that part of Mr. Justice Bradley's opinion, which is cited ante, 
p. 31, because it was one of the "reserved" powers. 

2 Pp. 35. Dutton & Co., 713 Broadway, New York. 



THEORY OF OUR NATIONAL EXISTENCE. 295 

Mr. G. T. Curtis's Discourse. 

the author in regarding as the fundamental one in our 
American constitutional law, while I entirely disagree 
with him as to the matter of fact asserted. 

On page 6 of this discourse, Mr. Curtis has said, " Now, 
there can be no question, it seems to me, that the states- 
men of all sections who made the Constitution understood 
this, — that political sovereignty, or government, is capable 
of division ; according to subjects and powers ; and that 
while the people of each State, after the Revolution, had a 
perfect and absolute right of independent self-government, 
it was both theoretically and practically possible to trans- 
fer to a common depositary certain of their political powers 
for specific purposes, while they reserved all their other 1 
powers to themselves." 

As long as the question was of the interpretation of the 
written Constitution, as of any legal document, it has been 
material to know the sense in which the words and clauses 
were understood by those who drew it up or who signed it 
or who advocated its adoption. 2 It was for this that Story, 

1 Iu his History of the Origin, etc., of the Constitution of the United 
States, Vol. I., p. 206, Mr. Curtis had said, " Political sovereignty is capable 
of partition according to the character of its subjects." See also ante, p. 106, 
notes. 

In Discourse, &c, p. 9, n., Mr. Curtis adds, " I have said in the text that tbe 
framers of our Constitution reached the conclusion that political sovereignty 
is divisible; and I regard this central truth, which, in the sense in which it 
is to be understood, is an American discovery, as the key to all correct in- 
terpretation of our political system." Mr. Curtis's note of reference is 
" Madison's works, IV., 390-391. Compare the Federalist, Nos. 39-45." In 
his History of the Constitution, II., p. 38, Mr. Curtis says, — " to regard the 
people of each State as competent to withdraw from their local governments 
such portions of their political power as they might see fit to bestow upon a 
national government. The latter plan was undoubtedly a novelty in politi- 
cal science ; for no system of government had yet been constructed in 
which the individual 6tood in the relation of subject to two distinct sover- 
eignties, each possessed of a distinct sphere, and each supreme in its own 
sphere." 

2 Those " statesmen of all sections who made the Constitution," as Mr. 
Curtis has it. 



296 nroiviSLBiLiTY of soyeeeignty. 

Political Morality distinguished. 

Kent and other commentators cited the recorded opinions 
of Madison and other statesmen of the time. 

But when the question has been — From whom does this 
Constitution derive its authority as law for us who live to- 
day ? — it is not of the slightest consequence what Mr. 
Madison or any or all the framers, signers and advocates 
hoped, wished to be, or expected would be the effect or 
operation of the Constitution. We want to find out the 
actual living persons who say to-day, We will this Con- 
stitution to be law ; sic volo, sic jubeo, stet pro ratione, 
voluntas. If we can find out whom Mr. Madison, or " the 
framers," or their neighbors, friends, and acquaintances, 
or anybody else then living, being an inhabitant, or a deni- 
zen, or a foreigner, then, in their day and time, looked upon 
as this person , for themselves, that will be material evi- 
dence for us. Because we may suppose that, unless a 
revolution has occurred in the interval, the will we are 
now seeking has continued. 

The question, "Who and where is that superior whose 
measure of justice I must obey as law, or bear the penalty 
of transgression, and to whom I must be loyal and faithful 
in peace and war, or incur the penalty of treason ? — that 
question — to which, if there be no answer, there can be 
no loyalty, no patriotism, no devotion to country ; because, 
it being unanswered, there is no country — is one which 
may or may not be answerable by the American of to-day. 

The question relates to obligation, to duty, in political 
relations. It might be called a question of political 
morality, or of that which, in political knowledge, is anal- 
ogous to morality in the sphere of religious knowledge, 
being predicated on the inevitable conditions of all political 
existence, the relation of sovereign and subject existing by 
necessity, whether the state be radical democracy or ab- 
solute monarchic despotism. 

As, in the province of religious ideas, we distinguish 



THEORY OF OUR NATIONAL EXISTENCE. 297 

Dogmatic Politics, or Political Theology. 

knowledge of morality from theology, so in the province 
of political thought we might discriminate political morality 
from dogmatic politics or political theology, if the expres- 
sion may be allowed. 

The leading men of 1776-1787, the so-called "founders " 
of the republic, in common with some of the most brilliant 
minds of their century, gloried in their dogmatic politics, — 
bequeathing them to those who should come after them, 
in their writings, and notably in The Declaration — dog- 
mas of political theology, doctrinal politics, about equality 
of men at creation ; natural rights ; governments resting 
on the consent of those obliged to obey them, — " generali- 
ties," which, as either true or false, are equally applicable 
or inapplicable at all times and in all countries : propositions 
about the meaning of which and the practical statecraft 
to be based upon it, we have been disputing from that time 
to the present hour, when inferences are drawn from their 
" self-evident truths " which would have filled those most 
respectable and conservative persons with horror and 
dismay. 

That something was born July 4, 1776, which may have 
continued to the present, is undeniable. But whether it 
was one or thirteen, the fathers left to be settled by the 
children. What the real thing born on that memorable day 
was ; who that was, or who those were who, on that day, 
were declared "free and independent States"; what that 
Our Country was, which then was born and for which, 
as they could, he should " pledge life, fortune, and sacred 
honor," was not told, for the American of to-day, by his 
predecessors of a century ago, for they did not tell it for 
themselves. 1 

1 Brownson, Am. Rep., 242. " But the philosophy, the theory of govern- 
ment, the understanding of the framers of the Constitution, must be con- 
sidered, if the expression will be allowed, as obiter dicta, and be judged on 
their merits. What binds is the thing done, not the theory on which it was 
done, or on which the actors explained their work, either to themselves or to 



298 INDIVISIBILITY OF SOVEREIGNTY. 

Mr. G. T. Curtis's Discourse. 

For the " venerable founders " believed, or, rather, im- 
agined that they believed, that they had got rid of the 
relation of sovereign and subject for themselves and for us ; 
that abstract justice was quite enough to serve all their 
political uses and ours, and that the eternal antagonisms, 
law and consent, were thereafter to form a state to be 
like a perpetual-motion machine, going on forever, without 
expenditure of force, without the effort of personal will 
supported by force ; and that writing, fairly engrossed on 
parchment, tagged with a lump of seal- wax, and called 
" The Constitution," would govern, in spite of their wills, 
those by whose wills it was to continue as law. 1 

But Mr. Curtis has himself said in this discourse (p. 10), 
that " the framers could not know whether the general 
Government would be the agent of the States, or whether 
the grant would be considered as proceeding from the peo- 
ple of the United States as a whole, or from the people of 
each separate State, or from the States as sovereign." 
And he goes on to show that their own doubts on this sub- 
ject led to the difficulties of 1798-99, about the Alien and 
Sedition laws. If so, why appeal to the framers now ? 

If we recognize this utter ignorance on the part of the peo- 
ple then living, as to the persons from whom the Constitu- 
tion could derive its authority, and yet hold that there is 
now a theory which had become so true before 1861 that it 
required only a huge civil war to manifest it, by ending in 
favor of the Government, we must attribute to the written 
Constitution itself the faculty of determining who were its 

others. Their political philosophy, or their political theory, may sometimes 
affect the phraseology they adopt, hut forms no rule for interpreting their 
work. Their work was inspired by and accords with the historical facts in 
the case, and is authorized and explained by them." 

1 See, for illustration, the opinions of the several justices of the Supreme 
Court, Chief Justice Jay. Justices Iredell, Wilson, Blair, and Cushing in 
Chisholm v. Georgia, 2 Dallas, 419 (1793), especially those of Judge Wilson 
and the chief justice, as a specimen of what was then, at least, held elo- 
quence and sound political philosophy. 



THEORY OF OUR NATIONAL EXISTENCE. 299 

Mr. G. T. Curtis's Discourse. 

progenitors, the faculty of making a nation or people, and 
compelling States to be States by its own inherent though 
long-hidden force, — the fetish Constitution ! 

Mr. Curtis told his audience that this idea of the divisi- 
bility of the right to govern, according to the subjects or 
objects of government, lies at the basis of our mixed politi- 
cal system, and it is what has always made that system so 
difficult to be understood by intelligent foreigners. 

" It was nearly impossible," says Mr. Curtis (p. 7), " for 
many Englishmen to understand the legal and constitu- 
tional theory which gave the Federal Government a moral 
and constitutional right to resist the secession of States 
from the Union." 

Of the answer which Mr. Curtis tells us he gave, he 
says, " This answer, of course, proceeded upon the assump- 
tion that such is our American constitutional law ; that 
such is the true theory of our Constitution. But this was 
the great point of the debate, that came, after all other 
modes of debate had been exhausted, to be referred to the 
arbitrament of battle." 1 

Such statements of our position might suggest to foreign- 
ers the inquiry, If the Americans themselves could not 
know, until they had fought it out, what their own Con- 
stitution was, was it not expecting a good deal to demand 
of strangers, in 1861, that they should understand it in 
advance ? 

Mr. Curtis himself justly observes : " All that I have 
to say, in closing this digression, before I return to the his- 
torical development of this very important question, is 
that, considering its history and its peculiar character, it 
is not very wonderful that Englishmen should for a time 
have given their sympathies to our Southern brethren. 
We must learn to judge of the conduct of nations and in- 
dividuals from the point of view at which they stand, and 

1 Compare ante, p. 89, n. 2. 



300 INDIVISIBILITY OF SOVEREIGNTY. 

Of certain Paradoxes. 

must appreciate our own case when we call upon them to 
understand it and to act accordingly." 

Mr. Curtis also admits (p. 28), " It might seem, in the 
abstract, somewhat paradoxical to suppose that such a 
question [of the right of State secession as a constitutional 
right] could be definitely settled by fighting." 

It might not be very difficult for English lawyers to 
conceive of distribution of the powers of government, as 
between the State governments and a general or federal 
government, while the States continued in undisturbed 
peace and voluntary union ; for this distribution has been 
exemplified in all the colonial system of the British Em- 
pire. But when the proposition is, that, while at war 
with that general or federal Government, the principle of 
division of sovereignty as between them and that Govern- 
ment still obtained, it may be difficult for strangers to 
see why the States were not "in rightful possession of all 
their pristine autonomy and authority as States," 2 un- 
less they became subjects of conquest. 

Indeed, the whole civilized world which accepts the 
definitions of the long-settled jus gentium and the modern 
jus inter gentes cannot avoid saying, You do state a par- 
adox. Your own terms are a contradiction. If you 
settled any right by fighting, it could only have been a 
treaty right, — a right which, so far as it existed, rested only 
on the obligations of international law. It could not have 
been a right, as you now claim, under constitutional law. 2 

1 The words of Mr. Justice Bradley, in Keith v. Clarke, ante, p. 81. 

2 In this connection a foreign critic might also ask, How does it happen, 
now that the fighting is all done, that we see in your law-libraries a volume 
of decisions (ante, p. 85, n. 3) by the chief justice of your Supreme Court, 
during part of the war and after it, edited by a prominent lawyer in one of 
the States of the late Confederacy, who held under it a commission in the 
rebel army, with his prefatory comments, — sanctioned apparently by the 
deceased judge, — to the seeming intent to show that the editor and his com- 
rades, fighting for their respective States, were men as good and true, in 
the matter of allegiance, as you and your friends, fighting on your side 1 



THEORY OF OUR NATIONAL EXISTENCE. 301 

Of certain Paradoxes. 

But the same public, the same consensus humani generis 
by which the jus gentium and the jus inter gentes subsist, 
will also say, This is not the only paradox you ask us to 
accept without criticism. You tell us that you have dis- 
covered something which the experience of three thousand 
years of historic civilization has told us is an impossibil- 
ity ; that is, that sovereign powers may be sovereign while 
forcibly parted ; while held, not merely separately, but ad- 
versely. Your fathers found themselves living under a 
distribution, in exercise, of such powers. You dreamed that 
it was a division of them, and say that you have demon- 
strated it by a war, in which, if you are right, the part 
of those powers held by the States must, as legitimate sov- 
ereign powers, have been exercised adversely to those held 
by the general Government. Though, after all, when it 
comes to a question about forty dollars in Tennessee bank- 
notes, your Supreme Court says the plan don't work, that 
there must be a hitch somewhere, though just where it 
is, the justices find it difficult to say on any theory of 
supremacy that has been advocated among you during 
your one century of political experience. 

Mr. Stickney (" A True Republic," p. 118) quotes De 
Tocqueville writing in 1833 : " If the sovereignty of the 
Union were to engage in a struggle with that of the States 
at the present day, its defeat may be confidently predicted, 
and it is not probable that such a struggle would be 
seriously undertaken." Mr. Stickney adds, " And that, 
doubtless, was the opinion of most men who then chose to 
think on the point." Subsequent history has shown, not 
so much that the French observer was mistaken in judg- 
ment, as that he was wrong as to the premises from which 
he argued. He was wrong in his prediction, because the 
theory of division of sovereignty which he had got hold of 
(ante, p. 102, n. 1) was not a fact. No such a struggle as 
he had imagined, between a something holding a portion of 



302 SOVEREIGNTY AND GOVERNMENT. 

Not all Governments Sovereign. 

the powers of sovereignty and a number of States holding 
other powers of sovereignty, was possible. When the 
struggle came, it was between States united, on the one 
hand, and what were no States, on the other. 

Whatever may be the distinctive mark of republican, as 
distinguished from other governments, it is, or at least was, 
up to a recent period, the leading idea in American con- 
stitutional politics that the possession of sovereign power 
should be at all times distinguishable from the organization 
of the government, — the for m a imperii from the forma 
regiminis. 1 

In the attempt to distinguish the United States, or the 
Union, as a personality possessing sovereign powers, and yet 
as one not identical with the States which are the members 
of the Union, it has been practically unavoidable to speak 
of the general Government as the grantee of these powers, 
and as a personality capable, by its political nature, of 
holding them by right of possession as sovereign against 
the will of each and all the States. 2 

It has often been said in support of the action of the 
general Government in maintaining its authority against 
the Rebellion, that the right or power so to act must belong 
to it by its intrinsic character as a government, or on the 
principle that every government must have the right to 
provide for its own existence or continuance. 3 

In this may be found an illustration of the ambiguity of 
words usually employed in stating political distinctions. 
The term, "a government," "the government," may be 
used in designating some who hold the supreme power by 
personal claim : as one may speak of the Government of 

i Ante, p. 293. 2 Ante, p. 102, IV. V. 

3 In the article in the North American Review, January, 1864, by Mr. 
Lowell, entitled "The President's Policy" (ante, p. 260, note), it is said (p. 
239), "A chief magistrate compelled, for the first time in our history, to act 
upon the fundamental maxim laid down by all publicists, that the first duty 
of a government is to defend its own existence." 



THEORY OF OUR NATIONAL EXISTENCE. 303 

The General Government not Sovereign. 

Russia, of Turkey, or of Burmah, where governing is the 
personal right of a sovereign individual, or of his dynasty. 
To a government in this sense the statement above made 
may apply. 1 

But here, in this country, there was no such govern- 
ment in existence, unless that which was identical with 
the organized people of the States united. 2 The general 
Government, as well as the State governments, was an em- 
ploye, and had no rights as against its employers, 2 the 
organized people of the States, united. J The Government, 
supposed to be the grantee in perpetuity of certain powers 
of sovereignty, was not an actual person in being, inde- 
pendently of the grant, corresponding to a monarch, prince, 
or dynasty, or corresponding to an organized body of indi- 
viduals like the political people of a State of the Union. 

A president and vice-president, a number of senators 
and representatives, all elected, and certain judges ap- 
pointed by some of these so elected, and their several sub- 
ordinates or appointees, all of whom, except as they receive 
election or appointment, are simple private citizens, exer- 
cise powers in governing, and so are the government of the 
United States. The Government, as a personal grantee of 
sovereign powers, is an " abstraction." 

It is paradoxical to say that such a government can hold 
anything as against the persons who are in actual existence 
as original power-holders, — the organized political peoples 
of the States being united ; who, as such, exist and would 
continue to exist without reference to the election or ap- 
pointment of the various officials who, as their agents, are 
the Government of the United States. 3 

1 The statement is that a government, in that sense, may and must make 
its own existence its own moral end; which is the doctrine of Machiavelli's 
11 Principe. See Woolsey's Political Science, I., § 60. 

2 See the use of the word " government," by Mr. Austin, ante, p. 140, note 1. 

3 For this reason there is a fallacy in Mr. Madjson's statement in the 
Federalist, No. 14, which has of late been cited for an authority, — "the 



304 SOVEREIGNTY AND GOVERNMENT. 

The General Government not Sovereign. 

Mr. Curtis, in the Discourse, etc., already referred to 
has said (p. 29), "while the war has settled the principle 
that the powers of the general government were irrevo- 
cably granted to it, by a fundamental law enacted by the 
joint consent of the people of every State," etc. vjf this 
means anything, it is that the general government is no 
such body of agents, but such a government as above 
spoken of, with a personal claim to sovereignty, to be 
maintained by its own force and will.^) "Whether, in say- 
ing that " the war has settled the principle," Mr. Curtis 
means that a new principle or political fact has been brought 
into existence by the military success of the persons admin- 
istering the general government does not appear ; but if this 
is not the case, "the joint consent of the people of every 
State," if this is a good expression, is as necessary to uphold 
continuously this government now as at the first moment ; 
and if it were withdrawn, there would be no such govern- 
ment in existence. " The joint consent " was and is a joint 
consent, because the 'power to consent was and is joint : be- 
cause it was in joint exercise, and in that only, that the 
States had their capacity to consent. 

The doctrine or statement of the fundamental fact is not 
varied in the slightest degree by employing the terms, the 
Union or the United States, instead of the term the Govern- 
ment of the United States ; unless the intention is to recog- 
nize that the organized political peoples of the several 
States, being in union, are, as so many living beings, the 
supreme power-holder, for whom the government of the 
United States is an instrument, as truly as the governments 
of each State are instruments for the organized political 

great comment of Madison," says Mr. Erothingham (Rise of the Eepuhlic, 
p. 602), that, "If they [the State governments] were abolished,. the general 
Government would be compelled by the principle of self-preservation to re- 
instate them in their proper jurisdiction." If the political peoples of the 
several States refuse, any longer to sustain their State institutions, then 
President, Congress, and judiciary will disappear, ipso facto. 



THEORY OF OUR NATIONAL EXISTENCE. 305 

The Government continued by State-action. 

people of that State. The Union, the United States, in 
any other sense than this, is a myth, a fiction of the 
mind. 1 

The fact that the body of persons constituting the gen- 
eral government by exercising the executive, legislative, 
and judicial functions of a government, for general purposes 
and with general jurisdiction, had not originally and have 
not since had the quality of continued existence or of self- 
continuance, but in order to continue must, precisely as 
the State governments in this respect, have been renewed 
by the action of other persons over whose volition, in that 
matter, they had no control, would appear to be too obvious 
to require any demonstration. 

Mr. Webster, in his celebrated reply to Mr. Calhoun, 
attempted to make out that the State legislatures or the 
States, meaning apparently both the members of the State 
legislatures and the electors of the several States, are 
obliged to exercise their individual volitions in keeping 
up the personnel of the general government. 2 This was 
simply a grand illustration of the fetish conception of 

1 Ante, pp. 110-115. Dr. Woolsey, in a passage which has been here al- 
ready cited (ante, p. 95, n.), illustrates the error which is substantially iden- 
tical with that " exaltation of the organ " which he there reproves. He 
does this by speaking of the United States as something existing, or being 
sovereign, without reference to " the States which compose the Union." 
According to my lights, the States which compose the Union are the United 
States, and there is nobody else to be the United States. Compare also 
ante, p. 120, n. 

2 Webster's Works, in., p. 471. " It [the Constitution] makes its own 
preservation depend on individual duty and individual obligation. Sir, the 
States cannot omit to appoint senators and electors. It is not a matter 
resting in State discretion or State pleasure. The Constitution has taken 
better care of its own preservation. It lays its hand on individual con- 
science and individual duty. ... No member of a State legislature can 
refuse to proceed at the proper time to elect senators to Congress or to pro- 
vide for the choice of electors of President and Vice-President. . . . Let it, 
then, never be said, sir, that it is matter of discretion with the States whether 
they will continue the government, or break it up by refusing to appoint 
senators and elect electors. They have no discretion in the matter." Com- 
pare also Mr. Justice Swayne's language in White v. Hart, ante, p. 20. 



308 SOVEREIGNTY AND GOVERNMENT. 

Why this Government may continue. 

the Constitution, as of a something having power to 
maintain its own existence independently of the will of 
its maker. 

As far as at present informed, I do not know that any 
person, of either little or great reputation, has ever affirmed 
that the Constitution, being a law in its nature, caused 
itself to be drafted in the convention and afterward 
adopted and put in operation as a rule of general govern- 
ment ; but it seems to me that that assertion would not 
be airy more preposterous than the doctrine that the Con- 
stitution can cause itself to continue to operate as a rule of 
general government. There is no more reason or neces- 
sity for such a supposition now than there was at the first 
moment of the organization of the government according 
to the provisions of the Constitution. 

That Government began and has continued so far, and 
will continue, so far as it may continue, for the same rea- 
son that governments continue all over the world : that is, 
because wherever there are human beings there is society, 
and wherever there is society there is political power, and 
wherever there is political power those who have the 
chance to use it will use it. 

As the facts are in this country, the organized political 
people of the States, being in union, have held and used 
this power ; and nobody else ; and they could have been 
expected to hold it and use it for the same reason that 
those who hold supreme political power, whether they be 
one or a few or many, in the various countries in Europe, 
Asia, and Africa, may be expected to hold it as long as 
they possibly can, — not because it is for the good of man- 
kind in general or of society in general, nor yet because it 
is for the good of a certain portion of society or of a lim- 
ited portion of the human race, nor because there was an 
original compact made by human beings with each other 
" once upon a time," under which these power-holders are 



THEORY OF OUE NATIONAL EXISTENCE. 307 

Why Governments exist at all. 

bound, as by law, to hold this power ; but simply because 
they have got it and like to keep it. 

Government has not existed all over the world from the 
beginnings of recorded time because it is or was a good 
thing, or a useful thing, or an indispensable thing. It has 
existed because men have been so constituted that political 
power never goes begging. The desire for rule, the pas- 
sion for power is, so far as the experience of mankind 
shows anything, as requisite for the continuation of gov- 
ernment as other passions for the continuation of the 
race. That it has made men " wade through slaughter " 
in the hope of attaining a greater or less enjoyment of 
dominion, that it has made crime, if committed for its 
gratification, seem almost a virtue, does not change the 
fact. It is the foundation of all government, in republics 
as well as in monarchies, in "these United States " just 
as truly as in Russia or in Afghanistan. 

All government in this country, before and in Mr. Web- 
ster's time at least, had been visibly exercised only through 
persons chosen by certain individuals holding the elective 
franchise under constitutions and laws enacted freely by 
themselves corporately, as constituting the political peo- 
ples of States in union. Though no coercive power com- 
pelling these individuals to sustain such government by the 
exercise of their franchise was discernible, yet their human 
nature might have been trusted to induce them to continue 
to do so. But if they ever should have failed to renew the 
general government, as provided in the Constitution, then 
that Constitution would have ceased to be supported by 
their will, and so ceased to be the Constitution for the 
people of the United States. 

The doctrine that the personality holding sovereignty as 
a unit, from whom the Constitution, as law, derived its au- 
thority, should be found in the nation or people at large, 
without regard to State organizations, or to the existence 



308 THE PLACE OF SOVEREIGNTY. 

The History of a Theory. 

of the organized political people of the several States, is 
not a novelty. 1 But its prominence has varied at different 
periods of our brief political history, and its assertion, from 
time to time, has been supported on one or the other of 
two distinct and really opposite grounds. 

If the learning, ability, and patriotism of its advocates 
could, consistently with the nature of things, cause a hy- 
pothesis to become a fact, or anything else than a hypoth- 
esis, the theory which ascribes the authority of the written 
constitution of general government to the intelligent act of 
" the people " or " the nation," as a mass of so many mil- 
lions living in a certain geographical area, might, long be- 
fore any events which, have occurred since 1861, have 
acquired the character of history. 

It is plain, from the memorials of the period beginning 
with the outbreak of the American revolution, and ending 
with the adoption of the Constitution, that there were 
many prominent men who recognized, more or less clearly, 
that ultimate sovereignty is incapable of division, although 
they could not discern any possible possessors of sover- 
eignty, other than either thirteen States, as thirteen nations, 
on the one hand, or a sovereign mass of population, inde- 
pendent of State boundaries, on the other. 

Who they were who then affirmed the one or the other 
of these alternatives as the fact, is immaterial for the pres- 
ent inquiry. 

It may be that the relations of the various congresses 
from 1774 to 1781, called " Continental," and of the gov- 
ernment under the Confederation, were at the time, as they 
have been since, almost universally taken to indicate that, 
as matter of fact, each State was, while these relations 
existed, severally or individually sovereign ; and it may 
also be that, when the Constitution had become the law of 
the land, it was almost as universally understood as being, 

1 Compare ante, pp. 108-115. 



THEORY OF OUR NATIONAL EXISTENCE. 309 

The History of a Theory. 

and declaring itself to be, one of two things, as the fact, 
either — 

1. A delegation of powers by so many severally sover- 
eign and independent States to a common agent of govern- 
ment ; l or, 

2. A grant or cession of certain powers, by such States, 
being so severally sovereign and independent, to a some- 
thing or somebody, quite distinct from those States which 
made such grant or cession of certain powers. 2 

But it may also appear, from various records of the time, 
that there were, in the earliest days of the government under 
the Constitution, some — and those, too, whose public and 
private virtues entitled them to the highest consideration 
— who accepted neither of these views, and who insisted 
more or less strenuously, according to their opportunities 
in public and private life, that the Constitution was the 
legislative act of the nation or people as a mass, in refer- 
ence to which the States were not the actors, as grantors of 
political power ; or, if such, were so only in a subordinate 
or representative capacity. 3 

It might be possible, by a minute analysis of this last 
class of opinions, to show that they were supported by one 
or the other of two very different, totally distinct, and 
even conflicting methods of demonstration. 4 

That is to say, it may appear that there were — 

First, some who relied on an a priori deduction of sov- 
ereignty, founded on the social-compact theory of the 
eighteenth century — the hypothesis, pure and simple, 
without reference to or care for the historical evidence. 

Second, some who professed to have discovered the 
location of sovereignty in the same people by an a posteriori 

1 Compare ante, p. 99, I., II., III. 2 Compare ante, p. 102, IV., V. 

8 Compare the statements, ante, VI., VII., VIII., pp. 103, 104, and IX., 
p. 108. 

4 See the application of the distinction to this subject considered in 
Jameson's " Constitutional Convention," ch. iii. 



310 THE PLACE OP SOVEREIGNTY. 

The History of a Theory. 

induction, relying on their view of the historical facts, 
according to which the people, as a mass of individuals, 
actually asserted and exercised all sovereign power, either 
at and in the revolutionary separation of the colonies from 
the British empire, or at and in a later revolution, occur- 
ring in the adoption of the Constitution in 1787. 

It is not easy to distinguish the respective followers of 
these two methods of demonstration; because, as their 
several political conclusions are the same, their respective 
arguments have been generally stated as if they were 
equally acceptable, or could be received together ; as com- 
patible, or as each equally true and valid. 

In many of the earliest opinions delivered in the Su- 
preme Court, the first of these methods is chiefly illus- 
trated ; in which the influence of the prevailing political 
theories of the time is clearly discernible. The social-com- 
pact theory is referred to as unquestionable and as histori- 
cally exemplified in the adoption of the Constitution, if not 
also in the Revolution. 1 

Aside from any estimate which may be formed at the 
present day of the value of the theory of the social com- 
pact, it is to be noticed that in the application of the doc- 
trine to their own circumstances, its adherents on the Su- 
preme Bench, or elsewhere, were divided by their several 
political preferences. While some asserted the doctrine as 
having been illustrated at this period by the formation of 
one nation in the place of the States which had succeeded 
to the colonies, it was as confidently relied on by others 
to prove that the inhabitants of each colony became, 
and ever afterwards continued, a severally independent 
state or nation. 2 As they all spurned the historic basis 

1 As in the opinions delivered in Chisholm v. Georgia, 2 Dallas, 49 ; ante, 
p. 137. 

2 A very striking illustration is given in the edition of Blackstone's 
Commentaries, by Tucker of Virginia, Vol. I., appendix, notes A, B, where 



THEORY OF OUR NATIONAL EXISTENCE. 311 

The History of a Theory. 

in their deduction, each advocate of that doctrine claimed 
for himself the power to discriminate what particular ag- 
gregate of individuals should be supposed to have com- 
bined in the compact, in order to become " a people " or 
" a state " at that time. Consequently, they determined 
this by their several views of political expediency ; that is, 
as they were already prepossessed in favor either of a con- 
centrated or of a decentralized form of political existence. 

Among the judicial opinions of the same early period 
which thus attribute the Constitution to the will of the 
nation or people, in the same sense of being a mass of indi- 
vidual persons aside from pre-existing political organiza- 
tions, there may be found, here and there, some passages 
which profess to discern the appearance and action of such 
a people, as a historic fact, in the same circumstances in 
which others, taking the opposite view, saw a manifesta- 
tion of the independent will of the States, or the several 
people of each State. 

As the theory of the eighteenth century gradually fell 
into discredit, 1 the historical method became more and 
more in request to sustain the doctrine ; and it is this 
method which appears more prominently in the later cases, 
especially of the time of Chief-Justice Marshall and of Mr. 
Justice Story. 2 

The question of the location of sovereignty, as has already 

the editor founds his doctrine of State sovereignty and the right of secession 
upon the social compact, which he regards as clearly established historic fact. 

1 But it has had a remarkable hold on American political thought. Mr. 
Webster, in his speech on Mr. Calhoun's resolutions, presented his arguments, 
in form, on the historical basis. But, referring to the language of some of 
the State conventions on adopting the Constitution, he said, " These con- 
ventions, by this form of expression, meant merely to say that the people 
of the United States had, by the blessing of Providence, enjoyed the oppor- 
tunity of establishing a new Constitution, founded on the consent of the people. 
This consent of the people has been called, by European writers, the social 
compact" &c. — Webster's Works, III. 477. 

2 Marshall, chief justice from 1801 to 1835, succeeded by Taney. Story 
appointed 1811, died 1836. 



312 THE PLACE OF SOVEEEIGNTY. 

The History of a Theory. 

been noticed, 1 being a historical one, is not judicial in its 
nature. The members of a court, in accepting their com- 
missions, recognize, each for himself, that they are given by- 
some sovereign authority ; but the court, as such, can have 
no capacity to determine who the persons are to whom the 
authority of the Constitution, as law, should be ascribed. 2 
Whether any later decisions of the Supreme Court have 
fallen behind these earlier opinions in their assertion of 
"the nation" or "the people," as the only source of 
power, or whether the doctrine of State rights has, at any 
time before 1861, had the upper hand on the bench, is im- 
material. But so far as the opposite doctrine — i. e., that 
which refers the Constitution, as a law for the distribution 
of power, to the will and act of the people as a mass, in dis- 
tinction from the will and act of the States, being united — 
has been maintained in the Supreme Court, it had been 
rested, before the war, almost entirely on the Webster and 
Story view of the instrument, as determining, by its own lan- 
guage, the pre-existence of those who gave it its authorhvy ; 
that is, in short, the argument from the words, " We, the 
people," — as to which enough, for the limits of this essay, 
has already been said in a former chapter. 3 

1 Ante, p. 98. 

2 Yet, from the manner in which the writers of the commentaries and 
text-books still refer to the opinions of the bench on this question, as if the 
judges themselves considered them in the nature of judicial decision, it 
should be inferred that these writers were as yet unaware of " the political 
department," to which the Supreme Court yields so respectfully in this 
matter. Compare ante, p. 290. See Pomeroy, Const, Law, §§ 184-150. 

3 Ante, pp. 108-115. Of this argument the English contributor in the 
London Law Magazine for August, 1863 (ante, p. 205, n.), very pithily 
remarked that it was one " whose only force lies in the reputation of its 
advocates." The leading judicial assertion of it may be that of Marshall, 
in McCulloch v. Maryland (1819), 4 Wheat. 316, — "The government pro- 
ceeds directly from the people, is ordained and established in the name of 
the people." — lb. 403. Perhaps that by Jay, in Chisholm v. Georgia, 2 Dall. 
470, is equally positive. To be sure, nobody knows whether Jay and Marshall 
understood by " the people " what Mr. Pomeroy understands by the term, and 
what Story and Webster appear to have understood. See ante, p. 109. 



THEORY OF OUR NATIONAL EXISTENCE. 313 

No Parallel with the French Revolution. 

Among those who, in some vague way, have ascribed 
all our institutions to the authority usually understood by 
the term " the sovereignty of the people," there have been 
doubtless many, both here and in Europe, who have 
supposed that the people of France, in their assertion of 
their political and civil rights in 1789, followed a course 
of political experiment in which the people of the Ameri- 
can colonies had preceded them in 1776. 1 

But, whether fortunately or unfortunately for us Ameri- 
cans of to-day, there was no such similarity in the political 
experiences of the French nation and the people of the 
American colonies, in those crises which each respec- 
tively denominates " the Revolution." 

When the French revolutionists had thrown off a dy- 
nastic monarchy together with the oppressive and degrad- 
ing privileges of the court and the nobility which had 
survived those needs of the earlier civilization which they 
were originally devised to sustain, 2 it was of necessity that 
the body politic which it devolved upon the leaders of the 
republic to direct should be a centralized state. 3 

During the previous two centuries, the persistent policy, 
self-interest, or mere instinct of the reigning djaiasty had 
built up the unitary authority of the king in the place of 
that distribution of political power which had been the 
basis of those feudal institutions by which the Gothic con- 
querors had restored order after the destruction of the 
Roman civilization. 4 The conditions of nationalization 
or centralization had been established already by those 

1 De Tocqueville says that the Americans seemed to the French to have 
only put in practical execution what their own writers had conceived as 
possible, and to have given the reality of fact to what the French were then 
dreaming of. Ancien Re'gime, p. 246, French ed. 

2 . Taine's Ancient Regime, Book I. 

3 De Tocqueville, Ancien Re'gime, etc., Liv. iii. c. 2 ; c. 5. 

4 This centralizing process was not confined to France. Liehei, Civil 
Liberty, etc., pp. 49-51. 



314 THE PLACE OF SOVEREIGNTY. 

No Parallel with the French Revolution. 

whose memories the French revolutionists execrated and 
whose descendants they massacred. Provincial institu- 
tions, local parliaments, estates general, etc., had already 
been abolished, or were sapped of their vital force, and ex- 
isted but in name. "When a new administrative authority, 
adequate to meet the internal and external enemies of the 
convulsed state was to be found, the elements of local self- 
government, which might have given organic life to such 
authority, were wanting. A revolutionary despotism could 
not look for support in traditions of any kind, or in any 
feeling analogous to that devotion or loyalty to certain 
persons or families, which, whether deserving of praise or 
of scorn, had been the strength of the dynastic monarchy. 
But, in the nature of the case, it was obliged just as much 
to seek moral sanction. Those then who successively 
wielded the supreme power set up an hypothesis ; they 
presented themselves as holding the contributed sover- 
eignty of individual citizens, under " the social compact," 
according to those theoretic systems of Locke, Rousseau 
and others, which, as the doctrine of " the rights of man," 
had been sentimentally applauded by the perishing regime 
of kings and courtiers 1 long before they were invoked to 
sustain the acts of those who at the foot of the guillotine 
demanded the heads of monarch and nobles in the name of 
the sovereignty of the nation. 

These ideas of the encyclopedic school were the new 
ideas of the eighteenth century, and the " framers " of the 
Declaration and of our constitutional laws, as also, un- 
doubtedly, a very considerable proportion of the most cul- 
tivated part of the population, were largely in sympathy 
with them. 2 But, whatever those framers may have 
wished for, designed, or expected, the fact stands out that 

1 Taine's Ancient Regime, B. iii. ch. iv. 4. De Tocqueville, Ancien Re- 
gime, etc., p. 247. 

2 Von Hoist, Constitutional History, vol. i. pp. 30, 31. 



THEORY OF OUR NATIONAL EXISTENCE. 315 

The States recognized Internationally. 

the spirit of local self-government, the desire to be gov- 
erned only by the political people of the State, in severalty, 
was so strong in the people of the former colonies that any 
action corresponding with the French realization of h 
peuple roi was out of the question. 1 The truth is, as Von 
Hoist has indicated, — more clearly, perhaps, than a native- 
born student would have done, — that the people of the 
nascent republic not only cherished fondly their local 
political organizations, but even yielded most reluctantly to 
the pressure of fact — the unwelcome fact — that, except 
as united, the States were not "free and independent 
States " at all. 2 

But it was equally the fact that, being so united, they 
— the States — were free and independent, and under no 
dominion of any other, whether one person or many per- 
sons, at home or abroad. Being so united in voluntary 
union, they have been recognized, as constituting an inde- 
pendent nation, by other " powers," great and small, — 
not merely in name or as a geographical expression, but 
diplomatically, in the international relations of war and 
peace, acting by successive agencies of government ap- 
pointed through the electoral action of the political peo- 
ples of such States, but being always known as states 
holding autonomic power, or sovereignty, in union. 

It was said by Mr. Justice Patterson, in Penhallow v. 
Doane, 3 Dallas, 54, — " The truth is that the States in- 
dividually were not known nor recognized as sovereign by 
foreign nations, nor are they now. The States collectively, 
under Congress 3 as their connecting point or head, were 

1 The sympathy with the French republic afterwards manifested, in 1791, 
more especially by one political party (compare Von Hoist, i. pp. 107-120), 
is a matter which does not affect this view of the previous state of public 
sentiment on the location of sovereign power at home. 

2 Von Hoist, Const. Hist, vol i. p. 62. 

8 The " Congress " under the Confederation, which first assembled March 
2, 1781, and ratified the Treaty with Great Britain signed September 3, 1783. 



316 THE PLACE OF SOVEREIGNTY. 

The States recognized Internationally. 

acknowledged by foreign powers as sovereign, particularly 
in that acceptation of the term which is applicable to all 
great national concerns and in the exercise of which other 
sovereigns would be more immediately interested." 

This, as I understand the action of other countries, is 
true, if the meaning is what I understand it to be, from 
the words and the syntax, — that the States united, acting 
through Congress, or "under Congress," as their chosen 
leader or general, proclaimed themselves " collectively," 
though not " individually," a sovereign in war and peace, 
and were so recognized. 1 

The question here is not, who the person or persons are 
whom foreign nations ought to recognize as the sovereign. 
That question has formerly come up, and may come up 
again. Whenever it might so come up for the consideration 
of foreign nations themselves, the opinions of our text* 

1 This opinion by Judge Patterson in Penhallow v. Doane is generally- 
cited as having a directly opposite meaning, that is, as affirming that the 
States were not recognized at all by foreign powers ; or that foreign powers 
knew only of a "congress," or general government, as holding sovereign 
power. It is true that the passage above cited follows others, in the same 
opinion, which attribute the possession of sovereign powers to Congress, by 
" the will of the people." Story has given these, with the passage above 
cited, as agreeing with the extracts which he makes from Judge Jay's 
opinion in Chisholm v. Georgia, 2 Dall. 470, and Judge Chase's in Ware 
v. Hylton, 3 Dall. 199, which last affirms that Congress, in distinction from 
the States and by "the acquiescence and obedience of the people, . . . prop- 
erly possessed the rights of external sovereignty." 

These dicta of our earliest courts are given by Judge Story as sustaining 
his statement, Comm. § 214. " Whatever, then, may be the theories of in- 
genious men on the subject, it is historically true that before the declaration 
of independence these colonies were not, in any absolute sense, sovereign 
States; that that event did not find them or make them such; but that at 
the moment of their separation they were under the dominion of a superior 
controlling national government, whose powers were vested in and exercised 
by the general congress with the consent of the people of all the States." 
Judge Story never defined for the benefit of his readers his own understand- 
ing of the term (comp. ante, p. 109), and whether these judicial statements 
of history are properly cited by him depends mainly on the question who 
are the persons intended by the words, " the people," " the people of the 
United States." 



THEORY OF OUR NATIONAL EXISTENCE. 317 

The States recognized Internationally. 

writers and the dicta of our judges would undoubtedly 
receive from them due consideration. But the question 
here is, who the person or persons here are whom, having 
considered the question, foreign nations do so recognize. 
If we want to see ourselves as others see us, we must go to 
them and ask them what they see. We must apply to their 
publicists 1 and to their courts sitting on international 
questions. 

In the case (1867) United States of America v. Wagner, 
3 Law Rep., Equity Cases, 724, " the defendants put in a 
general demurrer, raising the preliminary objection that 
the bill was filed in the name of the United States of 
America, without putting forward the President or any 
individual state officer upon whom process could be served 
on behalf of the defendant, or who could be called upon 
to give discovery to a cross-bill filed by the defendant." 

It was argued by Sir Roundell Palmer, and other counsel 
on behalf of the United States, — 

" That if the bill had been filed by the Government of the United 
States, or by the President, as chief of the executive, it must have 
been held to be a description which the court could not recognize, 
as Her Majesty knows no such foreign power as ' the Government 
of the United States,' the treaties being "in all instances with the 
« United States of America' simpliciter ; and under that title alone, 
which is officially recognized in this country, can the United States 
sue in the courts of this country." 

The vice-chancellor, Sir W. Page Wood, held the bill to 
be properly brought in the name of the United States, 
though he ruled that " when the United States sue as 
plaintiffs, they must let the defendant know from whom 
he can obtain discovery and who is the proper officer to 
put forward, if that be his mind or desire" (ib. 736), and 

1 Compare ante, p. 138, n. 2, and citation from Phillimore's International 
Law. In the same work the author notes AVheaton, Story, and Kent, as 
authors to be consulted for a general view of the position of the United 
States as one state in international relations, ib. §§ 118, 120. 



318 THE PLACE OF SOVEREIGNTY. 

The United States in an English Court. 

sustained the demurrer, allowing, however, the plaintiffs to 
file an amended bill in accordance with his ruling. In the 
Opinion delivered at the same time the vice-chancellor said 
(ib. 730), — 

"Those who followed Mr. James [for the defendant], went 
further and said that ' the United States of America ' were to be 
regarded here, not as the great and powerful sovereign community 
which they are, but simply as a geographical expression. Of 
course, any.such notion would be preposterous, but I was pleased, 
in the original treaty between the sovereign of this country and 
the United States, to find an expression which better meets my 
views than any words which I could use. The great and definitive 
treaty of peace and friendship signed at Paris, on the 3d of Sep- 
tember, 1783, between ' His Britannic Majesty and the United 
States of America ' commences as follows," etc. 1 The vice-chan- 
cellor also said (ib. 731), "The question, then, is whether, being 
a body politic (I cannot call them a corporation, for although in 
some respects the analogy may apply, in others it fails entirely) the 
United States can sue simply in that name, without naming any 
person to act in their behalf," etc. 2 

1 The vice-chancellor recited the preamble only, in which occur the 
•words, " It having pleased the Divine Providence to dispose the hearts of 
the most serene and most potent Prince George III.," &c, " and of the 
United States of America to forget all past," &c, &c. The language of the 
first article is more directly to the point, reading, " His Britannic Majesty 
acknowledges the said United States, viz., New Hampshire, Massachusetts 
Bay," and the others by name, " to be free, sovereign, and independent 
states, that he treats with them as such," &c. 

It may be proper in this connection to notice that the term " the people 
of the United States " does occur, once, in this treaty, that is, in Art. iii., — 
"It is agreed that the people of the United States shall continue to enjoy 
unmolested the right to take fish of every kind, on" &c. Whether the peo- 
ple are to go a-fishing as a sovereign nation or as sovereign states or as in- 
dividually sovereign fishermen is not stated. 

2 The vice-chancellor's idea is made still clearer by a passage in the 
same opinion (ib. 734), where he refers to other treaties between the 
sovereign of Great Britain and Ireland and the United States of America, 
and contrasts their terms with those of the treaty made November, 1851, read- 
ing, " Her Britannic Majesty and the President of the French Republic have 
deemed it expedient to conclude a special convention." He says, "In that 
case I apprehend it is clear that the President of the French Republic was 
the person authorized to deal in all transactions with this country on behalf 
of himself and the whole body in respect of whose interests he treats." 



THEORY OF OUR NATIONAL EXISTENCE. 319 

The Place of the States in History. 

The same question in another form was presented to the 
same court in Prioleau v. The United States of America, 
and Andrew Johnson (July, 1866, 2 Law Rep., Equity 
cases, 659), on a cross bill (see the case of the United 
States, etc., v. Prioleau, ante, 261, n.) to have the President 
made a party to the suit, for the purpose of being called to 
produce evidence. The same judge, Sir W. Page Wood, 
V. C, heard the case and dismissed the bill. 1 

This fact, then, that the States were free and independent 
only in union, while, in union, they were free and inde- 
pendent, Avas, for our predecessors of a century ago, their 
constitution as fact. 2 As fact, they left it for us, whether 
we may wish it should have been otherwise or not, for, as 
Mr. Lincoln once said, " We cannot escape history." 3 

They left it, however, for us only as far as they could. 
They lived and had their day ; and we live and have our 
day, as those who come after us will have theirs. 

From the general review in these pages of the action of 
the Government in reference to the attempted secession of 
eleven States and the action of Congress in reconstruction, 
it may sufficiently appear that such action has had general 



1 In this case the vice-chancellor said (ib. 665), " What there is to be done 
in the case of a bill filed by a political body, such as the United States (not 
a physical, but a metaphysical entity), proceeding as a sovereign state and 
endeavoring to assert its rights in this country ? " If this conception should 
be thought singular, especially in connection with the opinions in the cases 
mentioned above, it is not any more so than that of American text-writers 
who ignore the political people of each State as constituting the State, and who 
find the States, as well as the nation, by hypothesis (ante, p. 110-114). In the 
United States v. Prioleau (2 Hemming and Miller, p. 559), Sir W. Page Wood 
said, " Certain of the component States of the United States of America 
having seceded and established a de facto government under the style of the 
Confederate States of America," etc. Would the vice-chancellor say that a 
metaphysical entity can divide itself, or be divided by secession of its parts'? 

2 Ante, p. 130. From the reference made by the vice-chancellor it would 
appear that the English courts in 1867 were not aware of any change in the 
political constitution of the United States since the treaty of 1783. 

3 Conclusion of Message, Dec. 1, 1862. Macpherson, Hist , p. 224. 



320 THE PLACE OE SOVEREIGNTY. 

The Position of the Supreme Court. 

support only on one or the other of two theories of public 
law, either, — 

1. The theory of an international war and a conquest as 
of states previously independent of the conqueror ; or, 

2. The theory of a sovereign government, suppressing a 
rebellion of States against itself, and restoring them, as its 
subjects, to their former " proper practical relations." 

It is very possible that most of the opinions delivered by 
the several members of the Supreme Court which relate to 
the status of these States, in the interval between the date 
of their ordinances of secession and their final reconstruc- 
tion, might be classified or discriminated, as accepting, 
more or less distinctly, one or the other of these two views, 
as above stated, or perhaps some modification of them, 
which might be stated as, — 

1. A view regarding these States, though in the Union, 
as subject, for the time being, to the international law of 
war, applied by the victorious government ; or, 

2. A view founded on the idea of a usurping govern- 
ment, misrepresenting a State, supposed to have been ready, 
except as prevented by force, to comply with the pro- 
visions of the Constitution, which, under this view, was re- 
garded as a laio, acting on the States as its subjects, to be 
administered by the general government, not as representing 
States voluntarily united, but a nation or people, to which 
the States were supposed to owe allegiance. 

However convenient the first view or theory may have 
been found by the court to settle cases arising from the 
war itself, such as prize cases, 1 and the so-called confiscation 
cases 2 , it can hardly be said that a majority of the judges 
have carried out this view as a solution of the status 
of the States on the suppression of the Rebellion. That 
question, indeed, the court, as a whole, has left for "the 
political department " to grapple with. Or, so far as the 

1 Ante, pp. 49, 168. 2 Ante, pp. 62, 174. 



THEORY OF OUR NATIONAL EXISTENCE. 321 

The Position of the Supreme Court. 

court has indicated a solution of the question, it was ap- 
parent, at and since the reconstruction era, that the idea 
of the written constitution acting as law on the States, 1 
and compelling them to be, to do, and to suffer, — the 
idea of a constitution existing by its own force — the 
fetish constitution — or the idea of a constitution existing 
by the will of a nation or people which came into existence 
by this constitution, in virtue of which a body of elected 
delegates called the government may wield sovereign powers 
as if inherent in themselves personally, — was the idea 
relied on by the Supreme Court to escape the question, 
What is a State of the United States? 

It may be fair to assume that in this matter, the " loyal " 
public, or the public which supposes itself "loyal," with- 
out being able to say to whom it is " loyal," and the 
Supreme Court in the cases which have hereinbefore been 
referred to, have relied entirely on the old methods of dem- 
onstration already indicated, 2 viz., the hypothesis and the 
unsustained assertions of the Story and Webster school ; 
as to each of which, whether logically tenable or not, it 
is known that they had utterly failed to unite opinions, 
before the war, even on the bench itself, or to command a 
general or overwhelming assent elsewhere. 

I hope to have made it sufficiently clear that the main 
object of this essay has been to show that history furnishes 
a theory of our national existence which could justify the 
action of the government in resisting secession, as rebellion, 
and also support the action of Congress in reconstruction ; 
and that, therefore, even if it were possible to " escape 
history " and make out a different location of sovereign 
power in the past, the effort to do so, on the part of the 
judiciary and of private writers, has, as far as these matters 
were concerned, been entirely superfluous. 



1 Ante, pp. 9-23, 211-215. 

2 Ante, p. 309. 



322 THE PLACE OF SOVEREIGNTY. 

The Question of To-day. 

But, as already stated, 1 whatever the truth may be as to 
the past, this question of fact as to the location of sover- 
eign power is always essentially a question of the passing 
day. History does not prove anything, except as there is 
a presumption that what existed yesterday has continued 
to the present moment ; 2 and, for us, history which " we 
cannot escape " is always beginning. 

The question, then, in the method of inquiry followed in 
this essay, is, now as ever, Where do the great undisputed 
majority of the inhabitants of this country to-day find 
their ultimate sovereign ? 

This question is here put simply in a search for evidence ; 
on the principle or axiom stated by Austin : — 

" If a determinate human superior, not in the habit of obedience 
to a like superior, receive habitual obedience from the bulk of a 
given society, that determinate superior is sovereign in that society, 
and the society (including the superior) is a society political and 
independent. To that determinate superior the other members of 
the society are subject, or on that determinate superior the other 
members of the society are dependent. The mutual relation which 
subsists between that superior and them may be styled the rela- 
tion of sovereignty and subjection." 8 

In applying this principle or axiom, it is necessary to 
fix some limit in the use of the word " habitual." The 
word includes the element of time, as well as that of action ; 
but what extent of time, depends on the nature of the 
action to be known as " habitual." If political changes in 
the location of sovereignty are to be recognized as possi- 
ble, the axiom must be understood as admitting that the 

i Ante, p. 285. 

2 On the general principle of continuity, compare Phillimore's International 
Law, Part ii. &., vii. 

3 Austin, Province of Jurisprudence, etc., Sixth Lecture ; cited in 1 Wool- 
sey's Pol. Science, 203. This search for evidence is entirely distinct from 
that reference of government to the consent of individual natural persons 
which is constantly cropping out in our legal and political literature. 



THEORY OF OUR NATIONAL EXISTENCE. 323 

The Question of To-day. 

" habitual " obedience may possibly have existed only 
during a comparatively short space of time. The inquiry 
now proposed is to be confined to the present time, 1 as an 
era considered to have begun at some time later than the 
passing of the secession ordinances by the eleven States, 
and earlier than the close of the war and the reconstruc- 
tion era. 

In view of this same question, I have already argued 
that if the general public will regard the States of the 
Confederacy as having been belligerent parties up to the 
end of the war, then the States-rights version of history 
was good, up to that time, and the Constitution must be 
taken to have derived its authority in each State from the 
consent of the State severally. 2 

1 A similar inquiry might of course be framed in reference to an era in- 
cluding the period before the war, as by Mr. Jameson, when, after citing 
with approval, Const. Conv. p. 18, the first sentence of Austin's, as above 
quoted, he says (p. 29), " What political body, institution, or entity is there 
in the United States, not in the habit of obedience to any other body, &c, 
which receives habitual obedience from the bulk of the Union but the people 
of the United States ? It certainly is not the States, for they have habitu- 
ally obeyed, each and all of them, the people of the United States ever 
since the latter entered into a union as one people. The people of the 
United States, in 1789, threw the existing constitutions of the several States 
into hotchpot, and repartitioned amongst those bodies the powers they were 
thenceforth to exercise, giving a portion thereof to the States, a portion to 
the general government, and reserving the residue to themselves, and the 
States have habitually conformed to the edict which thus curtailed and ascer- 
tained their powers." An author who defines " the people," as Mr. Jame- 
son does, as the entire mass of the population, and who is endowed with 
courage enough to state this as history, is impregnable. Logically, it is a 
petitio principii. The people, with his definition, is no "political body, insti- 
tution, or entity " at all. 

2 Ante, p. 286. An inquiry as to the opinion of the general public on 
the present location of sovereign power is about the same thing as asking, 
What has been settled by the war ? using an ordinary phrase. I have 
(ante, p. 105) pointed out how the success of the Government against the 
rebellion has limited judicial inquiry to such history as may support the 
action of the Government in that instance. I have since found the same 
idea expressed by Mr. Yeaman, in " Study of Government," ch. 18, §§ 10, 
22, 23. 



324 THE PLACE OF SOVEKEIGNTY. 

The Question of To-day. 

It may then, perhaps, be asked of me, If the general 
public now says that sovereign power is now held by the 
nation as a whole, as a mass of millions, why not say 
that it is now so held, that the Constitution now derives 
its authority from such nation ; and why not, each one of 
us individually, recognize this, no matter whether it had 
been so before 1861 or not? 1 

The readiest answer which I should have at hand for a 
question of this sort, either now or at any previous time, 
would be, that the thing asserted, supposed, or imagined 
as a fact, whether asserted, supposed, or imagined, by a 
few or by many, is simply a moral and ph} r sical impossi- 
bility. 

Mr. Pomeroy, in his treatise on Constitutional Law, 
§ 37, has remarked, — 

" The distinction must be carefully and constantly preserved 
between the nation and the government which that nation has 
actively created or passively permitted, as the agent for the expres- 
sion of its supreme will. The people themselves, the entire mass 
of persons who compose the political society, are the true nation, 
the final, permanent depositary of all power. The organized 
government, whatever may be its form and character, is but the 

1 Notwithstanding the copious assertion by many that their view of the 
present location of sovereign power rests on the historical record, beginning 
in 1776, it might be suspected that some writers would not object to get 
support from the proposition above stated. Mr. Pomeroy, Const. Law, 
after stating (§§ 28-33) three different theories, the first, that of a supreme 
nation or people ; the second, the state sovereignty theory ; the third, that 
of a division of sovereignty, says (§ 34), "Among the leading supporters of 
the last theory may be named Madison and Jackson. It also lies at the 
basis of the judgments of the Supreme Court upon constitutional questions 
rendered during the presidency of Chief-Justice Taney. It had, perhaps, 
been adopted by a very large portion, if not indeed by a majority of poli- 
ticians. The events of the last six years [before 1868], and especially those 
growing out of the close of the war, and the readjustment of disturbed rela- 
tions, would seem to have brought the first theory into greater prominence ; 
and it may probably become the one accepted by the government and the 
people." But, if this general acceptance is the test, what is the value of all 
the argument from history and the nature of things 1 



THEORY OF OUR NATIONAL EXISTENCE. 325 

The Question of To-day. 

creature aucl servant of this political unit which alone possesses 
dominion in itself." 

The term " political society " involves, I think, as gen- 
erally used, some discrimination, from the entire mass of 
inhabitants, of certain persons as holding the supreme 
power, or as being the " political unit which alone posses- 
ses dominion in itself." Where there are no such persons 
distinguishable from " the entire mass of persons " in any 
geographical area, there is no " political society " at all, 
as I should understand the phrase. 

1 have herein already indicated the importance of dis- 
tinguishing between the natural persons constituting the 
governments existing in the United States, both general 
and State governments, and those whom I have recog- 
nized as being in actual existence as original power- 
holders. 1 But I understand Mr. Pomeroy and other 
recent writers 2 to mean that this original power-holder 
or " unit which alone possesses dominion in itself ,? is dis- 
cernible, by themselves at least, in the entire population 
of this country, as so many thousands or millions of indi- 
viduals, without distinction of birth-place, age, sex, race, 
and especially without any reference to the possession of 
any elective franchise, under any law, whether of the 
States or of the general Government, or in the written 
Constitution, and to hold that this body of persons, called 

Ante, p. 303. 

2 Jameson's Constitutional Convention, passim. " Conceding, then, that 
we are a nation, the answer to the question with which we started some 
pages back — Where resides the sovereignty in the United States ? — is 
ready to our hand. It resides and must reside in the nation, considered as a 
political society or body corporate. Back of all the States and all forms of 
government, in either the States or the Union, we are to conceive of the 
NATION, a political body, one and indivisible, made up of citizens of the 
United States without distinction of age, sex, color, or condition in life. In 
this vast body, as a corporate unit, dwells the ultimate power denominated 
sovereignty." lb. § 51. That which, according to Mr. Jameson, " we are 
to conceive " is, to my mind, not conceivable. 



326 THE PLACE OE SOVEREIGNTY. 

Mr. Jameson's Idea of a sovereign Nation. 

by them a nation, has "actively created or passively per- 
mitted " some government by a few " as the agent for the 
expression of its supreme will." 

I have in another place in this essay already noticed Mr. 
Pomeroy's and Mr. Jameson's references to Dr. Brown- 
son's and my own view of the investiture of sovereignty in 
the political people of the United States, 1 and, when citing 
Mr. Austin's language on that subject, I have also noted 
Mr. Jameson's objection to the view conveyed by it. 2 

I here copy Mr. Jameson's remarks in that connection, 
not only to acknowledge his generous allusion to myself, 
but also because they present distinctly the difference of 
opinion on a question of fact which, in my own judgment, 
is the fundamental question for the future in the politics 
of the country. 

After citing Mr. Austin's language, Mr. Jameson ob- 
serves, — 

" There is, perhaps, some ambiguity in this passage, as it is not 
clear whether, by the body of the citizens of a State ' which ap- 
points its ordinary legislature,' the author means the totality of its 
citizens, forming a corporate unit, which, ' the union apart ' virtu- 
ally appoints the legislature, or the body of the electors which 
immediately and formally appoints it. If the former was intended, 
his theory was clearly what I have supposed above [that is the 
theory maintained by Mr. Jameson himself] ; if the latter, it was 
the wholly untenable one, that sovereignty in the United States 
inheres in the electors or voting people of the respective States, 
considered ' as forming a collective whole,' — a theory which has 
the sanction of so eminent an authority as Mr. Hurd." 3 

A supreme lawgiver, of whom it can never be known 
when or how or where he is saying, willing, or thinking 

i Ante, pp. 127, 128. 2 Ante, p. 140, n. 

3 CoDst. Conv., § 60, with reference in note to Law of Freedom and 
Bondage, Vol. I., § 343, note 2. In § 61 Mr. Jameson cites Brownson's state- 
ment (Am. Rep. pp. 220, 221 ante, p. 135, n) of the doctrine which he desig- 
nates as "wholly untenable." This doctrine has been clearly and forcibly 
expressed in Bateman's Political and Constitutional Law, §§ 92, 93. 



THEORY OF OUR NATIONAL EXISTENCE. 327 

Mr. Pomeroy's Idea of a sovereign Nation. 

anything, who is not " available," not " come-at-able," to 
use the expression of an English writer, 1 whose legislative 
will is known only by his submission to the decrees of 
somebody who is available and come-at-able, is, to my mind, 
no lawgiver at all ; and a sovereign who gives no law, 
and yet can never abdicate, is, to my mind, no sovereign. 2 

I have pursued this inquiry with the assumption that 
the conditions of political existence must be the same, for 
Americans as for any other human beings. 

Mr. Pomeroy, in continuation, says of his doctrine, — 

" This great principle of human rights and of political science, 
which was distinctly announced to the world, and first practically 
acted upon by our own forefathers, and which is theoretically ad- 
mitted by most writers on Public Law, has been virtually over- 
looked or forgotten by many supporters of the ' State Rights ' 
theory, in the protracted discussions that have arisen upon the 
Constitution." 

That which is here called a " great principle of human 
rights and political science," whether it be true or false, 
has no value for determining the claims of " the State 
Rights theory." Somebody will have to discriminate what 
assemblage of individuals shall be taken to constitute a 
people. The "principle " would apply just as well to the 

1 " There ought to be, in every constitution, an available authority some- 
where. The sovereign power must be come-at-able. And the English have 
made it so." Bagehot's English Constitution, p. 162. 

2 Mr. Jameson says, Const. Conv. p. 20, " A true sovereign can never 
voluntarily abdicate or divest itself of the sovereignty." Also, " Sovereignty 
is inalienable ; [Why, then, the word " voluntarily " 1] that is, ' society never 
can delegate or pledge away sovereignty. . . . Being inherent, naturally and 
necessarily, in the state, it cannot pass away as long as the latter exists.'" 
Citing Lieber's Pol. Ethics. I understand Lieber, in the place cited (Book ii. 
§ lxiii), to be merely combating the idea that the individual members of 
society or of the state are each sovereign ; and so Brownson's Am. Rep. 185, 
also cited by Mr. Jameson. Dr. Lieber's " society " or " 6tate," had no geo- 
graphical limits, and his attribution of" sovereignty " to it has not the slightest 
value in indicating the duty of a private citizen ; which I take to be the 
practical test. 



328 THE PLACE OF SOVEEEIGNTY. 

Mr. Pomeroy on the Sovereignty of the People. 

population of each separate State as it could to the popu- 
lation of the entire country geographically known as the 
United States. That is, it would so apply if all reference 
to a historical location of political powers is left out of 
view. 

In fact, it may easily be shown that the " principle " 
has been affirmed and appealed to for support, quite as 
heartily by those among " our own forefathers " who 
maintained the several sovereignty of each State as it 
has been by any other school of "writers on public 
law." 1 

Mr. Pomeroy proceeds to say, — 

" The intentional ignoring or tacit rejection of the same doc- 
trine is the fallacy which runs through the whole of Mr. Austin's 
elaborate lecture upon the nature of the independent political soci- 
ety and of political sovereignty, found in the first volume of his 
' Province of Jurisprudence,' and which thus destroys much of the 
usefulness of that treatise. 

" It is certainly unnecessary for Americans to argue in favor of 
the correctness of this principle. Our whole political structure, 
our whole civilization, is based upon it. So true is it to nature 
and humanity that not only have European publicists adopted it, 
but even the European governments do not now reject it ; and 
some of the most arbitrary claim to wield their power by virtue of 
an authority derived from its practical recognition. The idea that 
the rulers, whether one or many, compose the state, is a thing of 
the past, a notion which has been swept away in the resistless 
march of social development." 

1 A modern illustration may be found in a work on Political and Consti- 
tutional Law, directed specially against Mr. Poineroy's treatise, by Mr. W. 
O. Bateraan, of St. Louis, one of the few who since the war have written in 
defence of State sovereignty. In this work I find (§§ 52, 53, 54) the same 
" principle" relied on and the same judicial opinions (Iredell, J., in Penhallow 
v. Doane, 3 Dall. 94, Chase, J., in Ware v. Hylton, ib. 199) which are referred 
to as authorities by other authors, making a directly opposite application. 
But in the discussion of this matter such citations of the same dicta to sup- 
port diametrically opposite views are by no means uncommon. Doctrine and 
history are confusedly mingled. Compare ante, p. 99. 



THEORY OF OUR NATIONAL EXISTENCE. 329 

Austin's Distinction of the Sovereign. 

Whether " the idea that the rulers compose the state " 
can be justly attributed to Austin or to anybody else de- 
pends on the meaning attached to the word " state." If 
the word is taken to mean the person or persons by whose 
intelligent will and action law exists in and for a commu- 
nity within certain geographical limits, it is " a notion " 
which no amount of " social development " can sweep 
away. Austin's proposition was not that the rulers com- 
pose the state. He, at least, was one of those who could 
not conceive of a state consisting of nobody but rulers. 1 
Austin's proposition was, simply, that there must be some 
persons, visibly, tangibly, audibly distinguishable — dis- 
tinguishable by the bodily senses — from the whole com- 
munity as a mass, who, as matter of fact and sense, — not 
by hypothesis or imagination, not merely " virtually," 2 — 
act in the matter of making law without reference to any 
similar action on the part of others ; and that, otherwise, 
there is no state or political community to be recognized. 3 

'•That "notion " belongs to a different school, which, though it appears 
to have had a resurrection since the war, was in greater vigor at the close of 
the last century with some of " our own forefathers." Judge Jay, in Chisholm 
v. Georgia, 2 Dallas, 470, said, " At the Revolution the sovereignty devolved 
on the people, and they are truly the sovereigns of the country ; but they 
are sovereigns without subjects (unless the African slaves among us may 
be so-called), and have none to govern but themselves. The citizens of 
America are equal as fellow-citizens and joint tenants in the sovereignty." 
Wilson, J., in the same case said, " Under that Constitution there are citi- 
zens, but no subjects." It is this school which, having been under an eclipse, 
now sets itself up to justify our past and to determine our future. Com- 
pare ante, p. 114. 

2 Mr. Jameson's term, ante, p. 326. 

8 The author of the well-known treatise on Ancient Law, Dr. Maine, 
in a paper On the Conception of Sovereignty, &c, says, " First, then, the 
human superior, who is to be sovereign, must be determinate. He need not be 
a single person or monarch. . . . There can be no grosser mistake than this, 
though it is constantly perpetrated by jurists whose place of birth leads 
them to associate ' sovereignty ' with ' despotism,' and who are perpetually 
committing themselves to propositions which, if considered rigorously, would 
either deny the existence of governments like our own and that of the 
United States, or at all events brand them with the stigma of illegitimacy. 



330 THE PLACE OF SOVEREIGNTY. 

Sovereignty in public Opinion. 

Whether the persons so distinguishable are called " the 
government " or " the sovereign," or " the supreme pow- 
er," or are designated by any other name, the fact is 
always and necessarily the same. 

There are probably many who would say that " the 
' sovereignty of the people ' means neither more nor less 
than the admission that in civilized countries the govern- 
ment exists for and ought to be, in the main, carried on in 
obedience to the wishes of the majority of the nation." x 
Nobody could ever question that, in all ages, " the rulers," 
whether few or many, as well as other folks, have had to 
accommodate themselves to circumstances, and that one 
very material circumstance they always have had to con- 
sider was what the people they ruled, or at least some por- 
tion of that people, thought right and proper, or, at least, 
for their own interest in their day and generation. Nobody 
now questions that, as civilization has extended with " the 
resistless march of social development " as Mr. Pomeroy 
says, the portion of the people who can frame and express 
a judgment as to what is right and proper, or what is for 
their own interest, becomes relatively larger ; while their 
judgment becomes more and more easily discernible by 
those who rule. 

It is true enough that such " a principle, if it be, like 
every other principle, but imperfectly obeyed, certainly is, 

Nor, again, can ' sovereignty ' be said to reside in the entire community, — an 
error the exact opposite of the misapprehension just alluded to, and one to 
■which French writers on public law seem especially liable. Their meaning 
may, perhaps, be that no body of individuals, except the entirety of the 
people, ought to be recognized as superior ; but a dogma like this is some- 
thing very different from the statement of a fact ; and the truth is, that no 
government corresponding with the description exists in the world. All 
polities are either monarchies or oligarchies, since, even in the most popular, 
■women and minors are excluded from political functions." Papers, &c, 
Juridical Soc. Vol. I, Part i., London, 1855, p. 30. 

1 Quotation from a letter of A. V. Dicey to The Nation, No. 789. 
Aug. 12, 1880. 



THEORY OF OUR NATIONAL EXISTENCE. 381 

Public Opinion distinct from Sovereignty. 

through the greater part of Europe, as in the United 
States, a recognized axiom of government." x But the 
" axiom " has a very different significance for governments 
where the rulers are a few, individually distinct from the 
persons ruled, as in " the greater part of Europe," and 
for governments where those who, being collectively the 
rulers, are individually a large part of the persons ruled, 
as is the case in the United States. It is only in the first 
of these instances that public opinion, as a power against 
the government, or constraining the government, can be 
said to have much force. In a theoretically perfect de- 
mocracy, public opinion and the opinion of the governing 
body must be one and the same thing. There is, there- 
fore, less room for manifestation of public opinion as 
against the government here than under the arbitrary gov- 
ernments of Europe. It may be said with truth that " its 
power is, in fact, most observable in states which do not 
possess democratic institutions." 2 

A representative government being dependent for its 
existence on the will of a majority of the electors, a public 
opinion opposed to that government must be supposed to 
be adverse to the wishes of this majority. . Such a public 
opinion could be found only in the wishes of others who 
are not electors, or of a majority of such ; agreeing, per- 
haps, with the wishes of a minority of the electors. To 
find a manifestation of " sovereignty " in a public opinion 
based on such a calculation of numbers is to elevate faction 
into an institution of government. The most obvious hope 

1 Mr. Dicey's letter. For these reasons I should say that public opinion 
was the manifestation of the very opposite of sovereignty instead of being 
one of its marks or manifestations, as said by Mr. Jameson, Const. Conv. 
p. 22, and by Lieber, Pol. Ethics, Book ii., § 65. Lieber quotes Napoleon 
and Talleyrand as recognizing its force as superior to their own plans or 
purposes, which I regard as illustrating how distinct public opinion is from 
political sovereignty. 

2 Mr. Dicey's letter. 



332 THE PLACE OF SOVEREIGNTY. 

Public Opinion in distinct political Bodies. 

offered by democratic institutions is to exclude such mani- 
festations, by rendering them practically useless. 1 

Even when the significance of " popular sovereignty " 
is reduced to that of "public opinion," as an equivalent 
term, the question in our case is of identifying "the peo- 
ple " whose " opinion," or " sovereignty," in that sense, is 
to be obeyed. And this can only be determined by first 
determining a political fact. A States-right publicist 
might admit that the States, meaning both their govern- 
ments and the organized political people, ought to adapt 
their political energies to enlightened public opinion 
definitely expressed. He would probably concede that, in 
the exercise of powers confided by the States, as he would 
say, to the general Government, it should be guided by the 
public opinion of the whole country, including Territories 
as well as States ; but he might reasonably demur, if told 
that, in the exercise of other powers not so entrusted to 
the general Government, the State governments or the 
State electoral bodies were under an obligation to disre- 
gard the general wishes of the inhabitants of the State 
and look to the public opinion of the people of the whole 
country, without regard to State limits. He might justly 
say that, whether that was or was not a good way of carry- 
ing on a government, it was at least diametrically opposed 
to the theory of freedom with government bequeathed by 
our fathers which we had for a century been boastfully 
holding up for the admiration and imitation of the world. 

But this reduction of popular sovereignty to the mere 
force of public opinion would not content those writers 
whose views I have been considering. If this were all 

1 However much sovereignty Lieber may have recognized in public opin- 
ion he could say, " The citizen ought not to be subject to . . . the dictation 
of mobs, nor any people who claim to be the people ; indeed, to no dictates 
of the people except in its political, that is, its organized and organic 
capacity." Civil Liberty, &c, p. 109. 



THEORY OF OUR NATIONAL EXISTENCE. 333 

Usurpation under popular Sovereignty. 

they understand by attributing political sovereignty to the 
people of the country as a mass of population, there would 
be only a verbal controversy, of which it might well be 
said that it could have no material consequence in the 
practical politics of this country. Had I supposed that 
this was all that could be inferred from their words, these 
pages would not have been written. 

In a previous chapter, after stating the proposition that 
sovereignty is indivisible, I presented, as the alternative 
for courts holding the judicial power of the United States 
Government, either to recognize, in the history of the past 
continuing to the present moment, some one personality or 
one aggregate of personalities, holding sovereignty as a 
unit ; or, to accept secession as a right, before 1861, and 
the whole action of the general Government since that date 
as usurpation, now legal and constitutional only as by 
successful revolution. 1 

Following out this alternative, I further maintain that 
if, in justification of that action of the general Govern- 
ment, the courts have relied on a supposed possession of 
sovereignty by the people or nation as a mass of popula- 
tion, that is, on the doctrine of the sovereignty of the 
people as maintained by Mr. Pomeroy and others, instead 
of recognizing it as vested in the political peoples of the 
States voluntarily united, 2 the court has accepted the alter- 
native of usurpatioii by the general Government. 

This consequence necessarily arises from the political 
truth or condition of political life, that as the visible exer- 
cise of political power by a nation, as a mass of individuals, 
is a moral and physical impossibility, some assumption of 
power, in the name of the sovereign people or nation, 
is the only possible means by which it can, even in name 
or appearance, be exhibited. So far as such sovereignt}^ is 

1 Ante, p. 107. 

2 According to the view taken herein, ante, p. 140. 



334 THE PLACE OF SOVEREIGNTY. 

Usurpation illustrated in American History. 

thinkable, it is with the thought of such a usurpation 
included. 

And I do not state this as a proposition assumed a priori, 
but as a generalization established from many instances in 
political history, — that the doctrine of popular sovereignty, 
or of a nation's existence without the investiture of the 
supreme power of making law 1 in some known person or 
persons who are not the whole nation as a mass of indi- 
viduals, always brings with it usurping governments. 

Americans will not have to go far to find such instances, 
if they will receive the history of their own country as it 
has been pictured by the school of jurists who proclaim 
the sovereign multitude. Mr. J. Q. Adams's discovery of 
usurpation by the States, at the very beginning of what 
we have been accustomed to call their independence, and 
Mr. Pomeroy's and Dr. Mcllvaine's further exploitation of 
it, have already been noticed. 2 To be consistent, in hold- 
ing this view of the history, one should also affirm that no 
legitimate government has yet existed in this country since 
the Revolution, and that the worshipped Constitution itself, 
especially, was established by an act of usurpation, sanc- 
tioned, as far as might be, by the passive obedience of the 
population, — the usurpation of authority, that is to say, 
by the organized political peoples of the several States, 
each acting as a corporate body, having the audacity to 
vote on the question of its adoption. 

Mr. Pomeroy, in illustrating his own " conception of the 

1 Die Souveranetat der Gesetzgebung. Ante, p. 97. 

2 See ante, -p. 124, note 1. The objection is there stated against the action 
of the State governments in the Confederation. But I do not see why it 
should not be equally applicable against the adoption of the Constitution by 
the electors of the several States. The explanation which is apparently 
relied on is, that the voters in all the States, voting as State electors, acted 
as representatives for the people of the whole country. But nobody has 
attempted to show any conscious action by that "people" appointing them 
to be their representatives. Compare ante, p.. 111. 



THEORY OF OUR NATIONAL EXISTENCE. 335 

Usurpation illustrated in French History. 

imperial character of the people as an organic political 
society " by a parallel says, — 

" Nor is the thought peculiar to our own social condition ; it is a 
dogma which lies at the base of all political science. The French 
nation has continued one and the same while its government has 
taken the successive forms of Monarchy, Republic, Empire, Mon- 
archy, Republic, Empire [Republic, once more] again. The 
several forms were, for the time being, the recognized organs and 
channels for the utterance and execution of the organic will of the 
people, in whom alone, as the final source, reside all the attributes 
and functions of legislation." 1 

As I understand the author, he asserts that the principle 
that sovereignty inheres in the nation as a mass was main- 
tained and illustrated in all these successive changes, each 
government being the legitimate instrument of the will of 
that nation. 

No more striking instances for the generalization above 
made — that the doctrine or assumption of the sovereignty 
of a nation, as found in the entire mass of a population, 
involves usurpation — could be found than that given in 
France, during the last one hundred years, by the persons 
controlling at various times the government, and who suc- 
cessively claimed that none other than themselves repre- 
sented the nation. Louis XIV, saying, " L'^tat,c'est moi," 
only said the same thing. "L'etat" — the state — in the 
language of his time, answered exactly to the idea of " the 
nation," " the people," of modern France and of this 

1 Const. Law, § 88. It seems to me that Mr. Pomeroy is particularly 
unfortunate in his illustrations here. He gives " the English people " as 
affording another proof of his theory. Certainly France and England can- 
not both be good as examples. The English nation has never asserted the 
French doctrine. There has always been a recognition that there was a 
portion of the community holding the supreme power, as Mr. Pomeroy him- 
self proves by what he says, ib. § 90. If mere national continuance illus- 
trates " sovereignty of the people," why not take China ? We do not know 
much about their institutions; but the Chinese nation has existed long 
enough. 



336 THE PLACE OF SOVEREIGNTY. 

Our Fathers did not act on this Theory. 

school of American publicists. The only variation in 
France, since monarchical centralization supplanted feudal 
distribution of sovereignty, 1 has been in the number of the 
pronoun of the first person. It has been either " L'etat, 
c'est moi " (Jam the state) or, " L'etat, c'est nous " ( We are 
the state), — as the state might be called kingdom, repub- 
lic, or empire ; but the nation, people, or state was equally 
active or passive in each instance. 2 

It is true enough, as has often been said, that some of 
the most arbitrary governments in Europe profess to rest on 
the idea of the sovereignty of the nation or people, and to 
act only in obedience to the will of such nation or people. 
But it would be a revelation to them and to " most writers 
on public law" to be told that they had derived their 
ideas on this matter from a discovery made by "our own 
forefathers " and our example, if that is what Mr. Pomeroy 
means. If I understand his own description, in the 
same connection, of the political events in which those 
forefathers were the actors, he himself makes it very plain 
that, whatever philosophical notions they may have had on 
the subject, 3 they did not act on any such theory as his, 
when it came to practical statesmanship. "With Dr. Mc- 
Ilvaine and all the writers of the same school, he shows 
that, in action, the ideas of State existence, State sover- 
eignty and local independence, most wrongfully, as they 

1 Ante, p. 313. 

2 Compare the historical summary hy Professor C. K. Adams, — Democ- 
racy and Monarchy in France. Mr. Pomeroy in another place speaks of 
" the imperial policy of consolidation which has made France the sport, now 
of a despot, and now of a moh, at Paris." Const. Law, p. 76. 

3 The fact that a man's political philosophy is not a sure indication of his 
statecraft is illustrated by Frederick the Great of Prussia and his posthumous 
code, which might have served as a model for the French Declaration of 
Eights of 1791. An analysis is given in note to De Tocqueville's Ancien 
Regime et la Revolution, p. 59. The same author, in a note to p. 237, notices 
the contempt which the revolutionary governments in France manifested 
for the will of the majority. 



THEORY OF OUR NATIONAL EXISTENCE. 33T 

Question as to an American Discovery 

declare, carried the day. All these writers represent the 
idea of nationality as a growth from seed generated by the 
Constitution, not as its cause ; but they now propose that 
the effect should be taken to have retroacted, and be pre- 
sented, historically, as being its own author. 

Mr. Curtis, as has been seen, thinks that the division of 
sovereignty between the States and the general Govern- 
ment was the thing settled by the war. 1 Mr. Pomeroy, 
Mr. Jameson, and others say that the investiture of sover- 
eignty in the nation as a mass was the thing so settled. 2 
But each party claims that the thing so settled was " an 
American discovery," — a political revelation, made by our 
fathers a hundred years ago. The question with regard 
to either supposed discovery is whether it is a possibility. 
Mr. Curtis's theory may be original, if possible ; but that 
of Mr. Pomeroy and his school, if possible, is not original. 
If there is airything in our political methods with which 
we can posture before the world as inventors, it is not this 
time-worn pretext for despotic governments. 

If the primary political fact in this country has been 
and now is that sovereignty was and is vested in the 
political peoples of the States united, or, in other words, 
if the term " We the people of the United States" in the 
written Constitution has indicated and now indicates those 
political peoples of the States united, — the connection 
between this people and that Constitution, as the law rest- 
ing on their will, together with all legislative, executive, 
and judicial action of the general Government, is apparent. 
This connection is all matter of record ; as clearly as the 
connection between the known residents of a New Eng- 
land township and the action of a town-constable exe- 

1 Ante, pp. 2g9, 304. 

2 What is to become of Mr. Webster and " the best minds in New Eng- 
land " (ante, p. 115, note) if Mr. Pomeroy and Mr. Jameson are to be trusted 1 
Must it be supposed that " the best minds " have gone West, carrying Mr. 
Webster with them ? 



THE PLACE OF SOVEREIGNTY. 



The People connected with the Constitution. 



cuting their resolves passed in town-meeting, which is 
proved by the clerk's minutes, or as the connection be- 
tween a private grantor and his conveyance of a house or 
farm, which is proved in the county registry. 1 

If, on the other hand, the primary political fact has been 
or now is that sovereignty was or is vested in the nation as 
a mass, or, in other words, if the term " We the people of 
the United States " in the written Constitution has indi- 
cated or does now indicate the nation as a mass, the con- 
nection between this people and that Constitution, as the 
law resting on their will, together with all action of the 
general Government, is not apparent. 2 There is no record 
of any sort to show it. It can be known only as some 
person or persons may appear to have succeeded in using 
political power in the name of such people. 3 

1 "Judging by the regular exercise of sovereign powers in the United 
States — that is, by the constitution of government now established, — sov- 
ereignty would seem to reside in the people as discriminated into the groups 
known as States." Jameson's Const. Convention, § 57. The author's argu- 
ment, however, would require, as major premise, that, in this matter, appear- 
ances always indicate the contrary. The whole section is one of the most 
remarkable in the work referred to, as illustrating the method of reasoning 
by assertion which has characterized tills school from the day of Chisholm v. 
Georgia. 

2 It must be borne in mind that no judicial assertion of the existence of 
such a connection, unsupported by the historical record, can become testimony 
to the existence of such a connection; even though the judge making the 
assertion should be the wisest and best among men. Indeed, when so un- 
supported by the record, the higher the judicial position and the higher the 
character for wisdom and goodness of the person making the assertion, the 
more evident is the failure to produce the effect of evidence supporting the 
existence asserted. No clearer instance of this failure to show any connec- 
tion between the Constitution and the action of the people as a mass could 
be found than that in the assertion of its existence made by Chief Justice 
Marshall, in McCulloch v. Maryland, 4 Wheaton, 404, in the passages cited in 
Story's Commentaries, § 362, in which Marshall argued — if such can be 
called arguing — that the fact that the Constitution was adopted in each 
State by the political people of such State, as distinguished from the State 
governments, was in reality another and totally different fact, that is, its 
adoption by the people of the whole country without distinction of persons 
or of States. Compare ante, pp. 109-113, 312,323. 

3 Ante, p. 333. 



THEORY OF OUR NATIONAL EXISTENCE. 839 

The Government connected with the Constitution. 

By this last supposition, theory, or doctrine, whether 
taken as true before or only after 1861, the only facts 
underlying all our political life have been, or now are, two 
facts without any necessary political relation or any con- 
nection in the order of their origin, — one the existence 
of a nation or people as a mass ; the other, the existence 
of a government assuming to administer a written Con- 
stitution as a supreme law of the land. 1 

If this last supposition is presented as having been true 
before 1861, as well as afterwards, it must also be held 
that, though the historical adoption of the Constitution by 
the several political peoples of the States was an act of 
usurpation, as against the nation as a mass, 2 yet, being 
condoned by such nation, it enured for the political benefit 
of the government organized according to such Consti- 
tution ; so that, by it, the political peoples of the States 
in their corporate capacities became subject to the govern- 
ment they had themselves wrongfully set up, as if by their 
united wills. 

As nobody could show that a nation as a mass had 
authorized the States in union to represent it when they 
adopted the Constitution, it is certain that no political 
method of ascertaining the will of the nation as a mass 
has as yet been even suggested. The political rights of 
the States in union, antecedent to the Constitution, being 
then ignored, the Government is not the agent of the States 
in union ; while, by assuming the Constitution as a law 
which it is to apply, it makes itself the author of such V 
law. 

1 As this theory or doctrine is presented by its adherents, the Consti- 
tution, acting as law, is postulated as one fact, independently of its being 
applied by any body. The nation is supposed as the other fact ; but no con- 
nection is shown between them. Compare Pomeroy's Const. Law. §§ 14-16, 
pp. 10-12, of the fourth ed. This is the fetish Constitution. A Constitution 
for which no authority can be proved is not a fact at all, except as any 
written piece of paper is a fact. 

2 Compare ante, p. 334. 



340 THE PLACE OF SOVEREIGNTY. 

Possibility of a Revolutionary Change. 

It would then appear, under this last supposition, that 
this Government has, though by a sort of necessity, actually 
followed the old method of European governments indi- 
cated by Professors Pomeroy and Jameson. \ It has usurped 
sovereignty, as against the nation itself, by presenting the 
Constitution, not as the law of a known legislator, the pre- 
existent States in union, under which law it should itself 
exist, but as a law which, in the name of the sovereignty 
of the people, it proposes to enforce as a rule binding on 
States and on people. 

If this last supposition is presented as true only since 
1861, and if it is granted that before that date sovereignty 
was vested in the political peoples of the States, being 
united, the general Government, by taking this position, 
might be thought to have usurped sovereignty as against 
the political peoples of the States ; unless it can also be 
now shown that a revolutionary change in the seat of 
sovereignty, not due solely to the action of that Govern- 
ment, but supported by irregular popular force; has oc- 
curred. 

Whatever may be the consequences logically involved in 
accepting this supposition or theory, it is one of the facts of 
this particular case that the persons who, with the judiciary, 
constitute the general Government are sworn to maintain a 
written Constitution which in its terms provides for and 
limits this general Government ; and they therefore must 
present themselves as controlled, in some sense, by its 
provisions, while they undertake to enforce it as law in the 
name of the sovereignty of the people. 

This Constitution or law has indeed been changed in 
some particulars since the war ; but so changed by Amend- 
ments adopted in apparent accordance with the tenor of 
the provisions on that subject in the original Constitution 
of 1787. 

It may perhaps be said, in suggestion of a doubt, that, 



THEORY OF OUR NATIONAL EXISTENCE. 341 

How such Revolution may be known. 

judging by the past, the Constitution as law could be ad- 
ministered by the same sworn officials whether the State- 
rights version of history, or the Madison and Jackson ver- 
sion of a division of sovereignty, or the Story and Webster 
version, resting on the words " We the people," etc., or any 
other version hitherto offered was adopted. 1 It may be 
said that the supposed change, by usurpation or by revo- 
lution, has, apparently, at the most made that to be true 
in fact, or historically since 1861, which before that date 
had been asserted as then existing fact only by the school 
of Story and Webster. . 

It may then naturally also be asked, — 

First, — How could it at any time be known that this 
written Constitution has, as a law, expressed or may here- 
after express the will of one sovereign, — the supposed 
nation as a mass, — instead of having expressed or here- 
after expressing the will of another sovereign, — the sup- 
posed States in a voluntary union ? and, 

Second, — How has the supposed revolutionary change 
made or how can it make any practical difference in the 
matter of public or private rights and obligations ? 

On the occurrence of any revolution, as the histories of 
all former revolutions show, nothing is more difficult to 
prognosticate than how it will be felt or be known as a 
revolution. But an answer to each of the above inquiries 
may be suggested by the following considerations which 
apply more directly to the first, — How can it be known \ 
that such a revolution has taken place ? 

This written " Constitution of the United States " is the 
only rule of government which, under this last supposition, 
can be assumed to exist as the expression of the will of the 
nation as a mass. In this, previously to 1868-1870, provision 

1 This may appear from the circumstance that, though every variety of 
opinion on this matter lias been held by judges, by executives, and by mem- 
bers of Congress, yet nobody has been impeached merely for his opinions. 






342 THE PLACE OF SOVEREIGNTY. 

How such Revolution may be known. 

had been made for the organization of a general Govern- 
ment only ; no provisions for organizing either State ad- 
ministrative governments, or the political peoples of the 
States, directly, 1 or otherwise than by the agency of that 
general Government, in the admission of new States, 2 were 
combined with it. 

The idea of pre-existence of States united, as requisite 
to the existence of any Constitution of the United States, 
being excluded, as it is under this last supposition, it would 
therefore appear that the Government, as the only one to 
claim authority in the name of the nation as a mass, must 
claim to stand in the relation of a superior to any others 
which may actually or possibly be found within the na- . 

1 A limitation on the self-determining power of the political people of 
each State was introduced by sect. 1 of art. XIV., adopted 1868, " All persons 
born or naturalized in the United States and subject to the jurisdiction there- 
of are citizens of the United States and of the State wherein they reside," 
and sect. 1 of art. XV., adopted 1870, "The right of citizens of the United 
States to vote shall not be denied or abridged by the United States, or by 
any State, on account of race, color, or previous condition of servitude," and 
sect. 2, " The Congress shall have power to enforce this article by appropriate 
legislation." 

2 Allusion only can here be made to a matter of theory which might 
properly have been noticed in connection with the subject of ch. IV. There 
are probably many who think that in the admission of new States, as pro- 
vided for in the Constitution, art. IV. sect. 3, the subordination under law of 
those States, at least, in having received their existence from something 
called "the Union," according to a Constitution whose pre-existence could 
not have been derived from their own possession of sovereignty, has been 
historically demonstrated. It has been said of " the States formed since the 
adoption of the Federal Constitution. They, instead of regarding them- 
selves as the creator of the Union, are forced by the facts of their history to 
look upon themselves as its creatures. They owe to it all they have and all 
they are. There is nothing historical about the State-rights doctrine in these 
new communities." — The Nation, Oct. 7, 1880. This is another illustration 
of the idea of a Constitution existing per se, and of the lawyer's point of 
view. The entry or birth of a new State of the Union was not a fact under 
the Constitution as law, nor under any law. It was a political fact in the trans- 
mission of sovereignty ; as much so as the fact that the original thirteen 
colonies acquired sovereignty as States in union. The new State accepted 
participation of sovereignty in the democratic oligarchy (ante, p. MO), and 
forthwith the Constitution derived its validity from States in union, number- 
ing one more. 



THEORY OF OUR NATIONAL EXISTENCE. 343 

How such Revolution may be known. 

tional dominion. That is, it must stand in this relation 
not only to the administrative governments organized in 
the several States, but also to the corporate peoples of those 
States, who, by their several action, have organized such 
administrative State governments, and who in appearance 
voluntarily instituted that general Government by adopting 
the Constitution of the United States, and who still appear 
to act voluntarily in sustaining the existence of such Gov- 
ernment from time to time, by electing persons to consti- 
tute such Government. 

Under the supposition that the Constitution as law was 
derived from the will of the organic political peoples of 
the States united, they, like other sovereigns, might be 
supposed capable of taking care of their own political ex- 
istence, power, or right ; or it Avould be the duty of the 
general Government to do this, only as it might be inci- 
dental to the discharge of its prescribed duties, as their 
agent, under the law given by them in the Constitution. 
The Government would have no right to go beyond this 
law, with the general purpose to maintain the sovereignty 
of those upon whose will the continuance of the law was 
to depend. 1 

But under the other supposition, the position of the Gov- 
ernment may be very different. Under this supposition, the 
possession of sovereign power by the nation as a mass can 
be known or felt only as there may be a government as- 
suming to act supremely by administering a constitution, 
as law, in the name of such nation. LTherefore, it must 
become the duty and right of the general Government to 
maintain its own existence as a supreme or sovereign gov- 
ernment ; this being the only method in which the sover- 
eignty of the nation as a mass can be preserved at all. In 
being the only manifestation of the nation, that Government 
must have the political right and duty to maintain itself as ) 
1 Compare ante, pp. 201, 302, 303. 



344 THE PLACE OF SOVEREIGNTY. 

How such Revolution may be known. 

sovereign against all persons, whether acting as private 
citizens or as corporate States, and, in this general purpose, 
it cannot be bound by the Constitution as the limit of its 
powers ; because, by this theory, that Constitution is not 
law at all, except as that Government may sustain it. 

It is in harmony with this supposition to hold that the 
States are political organizations, whose rights, under the 
Constitution as law governing them, to send senators and 
representatives to Congress and to contribute a proportion 
of the members of the electoral college, 1 are trusts in the 
hands of the political peoples of the several States for the 
object of continuing the existence of the general Govern- 
ment. 2 

It might seem from this that no action of a State in its 
corporate capacity as one of the United States could 
interfere with the fulfilment of this obligation ; that, 
while recoo-nizino- the existence of the State as a member 
of the Union, the general Government could distinguish 
between voters " loyal" and voters "not loyal" in this 
political relation between the States and the general Gov- 
ernment ; and that, however insignificant in number might 
be the proportion of the voters of the State willing to 
perform this trust, the general Government should recog- 
nize them as capable of sending the State's whole quota of 

1 I here assume that the original intention was to form an electoral 
college, the members of which should cast their votes individually or as 
expressing their individual preference- In practice, as is well known, the 
votes are given as the solid vote of the State ; giving greater strength to 
majorities in the States, and making it possible to elect the executive by a 
minority of the voting people of the States. This is an exhibition of States- 
right idea growing up under the same Constitution which is supposed to have 
generated "nationalism" only. 

2 Compare Mr. Webster's argument, ante, p. 305, n. Also Mr. Justice 
Swayne's : " The States are organisms for the performance of their appro- 
priate functions in the vital system of the larger polity of which, in this 
aspect of the subject, they form a part, and which would perish if they were 
stricken from existence and ceased to perform their allotted work." Ante, 
p. 20. 



THEORY OF OUR NATIONAL EXISTENCE. 345 

How such Revolution may be known. 

senators, representatives, and electors, however large the 
majority opposed to exercising this right and to joining in 
maintaining the personnel of the general Government. 

It would appear consistent with this view that the Gov- 
ernment should have the power to discriminate the " loyal " 
citizens from the " disloyal " by means of test oaths, and 
to secure " loyal " citizens in freedom of action by its own 
administrative power. 1 

Moreover, if such should be the actual powers and 
duties of a government under any theory of its existence, 
it may reasonably insist that the written public law should 
be so expressed as to leave no doubt as to the political 
duty of the citizens. 2 The States, regarded as organisms for 
sustaining the general Government, might be required, it 
would seem, to effect this by adopting, under the direc- 
tion of that Government, such amendments to the written 
Constitution as might be deemed by it necessary or proper. 

I have hereinbefore argued that the methods actually 
adopted by the Government in reference to the Rebellion 
and in reconstruction might, as a whole, be held consti- 
tutional, if the eleven States of the Confederacy had ceased 

1 Under this view it is quite supposable that the persons exercising the 
functions of the general Government might sustain themselves in power 
against the will of the actual majority of the people of the country, while 
preserving the forms of the Constitution. Indeed, it may be difficult to see 
how any provisions should bind the sole representative of the nation as a 
mass. It would be correct to say, generally, " The powers originally re- 
served by the Constitution to the States are in future to be held by them only 
on good behavior and at the sufferance of Congress." — North American Review, 
July, 1870, article by Mr. Henry Brooks Adams, entitled " The Session," an 
essay which may be referred to as illustrating very forcibly the operation 
of the supposed political change. 

2 If the citizen or subject can have a right independent of constitutions 
and laws, it would seem to be aright to know in advance whose legislation he 
must obey and whose he must disobey. No such right, however, is alluded 
to in the Declaration, nor in the Opinions in Chisholm v. Georgia and other 
cases of that period. Probably, because the statesmen and jurists of that 
time held that the freeman obeys only where he may choose. Compare ante, 
pp 298,329. 



346 THE PLACE OF SOVEREIGNTY. 

How such Revolution may be known. 

to have the political faculties of States composing " the 
United States " and had passed under a jurisdiction ex- 
ercised, under the Constitution, exclusively by Congress, 
as over Territories subject to the undistributed sovereignty 
of those States which remained in a voluntary union. 1 

But from the considerations above presented, as legiti- 
mate under the theory of the sovereignty of the nation as 
a mass, represented by a government enforcing the written 
Constitution as a law binding on the States as its subjects, 
it appears that, under that theory, the same methods of 
government should be held constitutional — without assert- 
ing any doctrine of State-lapse — if only thought by such 
government politically necessary to its own maintenance 
as the government representing the nation as a mass. 2 

Nothing has been more distinctly affirmed by the Su- 
preme Court than the uninterrupted continuance of the 
eleven States. 

But the supposition or theory which would, as above 
stated, sustain the measures taken, though the continued 
existence of those States should be admitted, has no basis 
in the history of the country before 1861. The assertions 
by Marshall and Story, and by judges and jurists now 
living, in contradiction of the record, cannot make a his- 
tory to support that theory. 

Therefore, as the Supreme Court has neither accepted 
any doctrine of State-lapse nor declared these methods of 
government contrary to the letter and spirit of the written 
Constitution, it has, according to the alternative hereinbe- 

i Ante, pp. 145, 201. 

2 In his article in North American Review, July, 1870, Mr. Henry Brooks 
Adams says, " The resistance to these measures rested primarily on the fact 
that they were in violation of the letter and spirit of the Constitution, as re- 
garded the rights of the States ; and the jurisdiction rested, not on a denial 
of the violation, but in the overruling fact of necessity." An argument 
from such a supposed necessity has, in fact, been the only argument offered 
to sustain those measures. See ante, pp. 200, 201. 



THEORY OF OUR NATIONAL EXISTENCE. 847 

How such Revolution may be known. 

fore stated, 1 recognized a usurpation on the part of the 
general Government, which may have been converted into 
legal and constitutional action by a political change in the 
investiture of sovereignty since 1861 ; making the theory 
which would support such methods true, that is, making it 
a correct exposition of the actual possession of sovereign 
power as historic fact. 

For whether the general Government, before 1861, was 
or was not to be regarded as superior to the States in a 
voluntary union by representing the nation as a mass, yet 
if " the bulk of the given society " — the inhabitants of 
this country in this instance — have "habitually " 2 recog- 
nized the action of that Government at that time as legit- 
imate and have also asserted the continued existence of 
the eleven States of the Confederacy, 3 the theory of our 
national existence which supports such action must be 
taken as having received recognition also. 4 

The question, then, is narrowed down to this, — Is this 

1 Ante, pp. 107, 333. 

2 See ante, p. 322. 

3 No expression that has been uttered on the Supreme bench has had 
more, popular acceptance than that by Chief Justice Chase, in Texas v. 
White, — "an indestructible Union, composed of indestructible States." 
Ante, p. 12. 

4 In the article entitled " The President's Policy," contributed by Mr. Low- 
ell to the North American Review, January, 1864 {ante, p. 271, n.), it is said, 
p. 259, " We believe, and our belief is warranted by experience, that all 
measures will be found to have been constitutional at last, on which the 
people are overwhelmingly united. We must not lose sight of the fact that 
whatever is exft-a-constitutional is not necessarily unconstitutional." This 
"belief" could be justified only on the basis, above presented, of a revolu- 
tionary change. The " e.rtra-constitutional " measure contemplated in the 
article cited was the executive abolition of slavery, as to which " the people" 
of the Northern States were not " overwhelmingly united," and if a ma- 
jority of « nation as a mass was to be estimated, surely the inhabitants of the 
Southern States were not to be excluded from the census. So far as the so- 
called " emancipation by proclamation " has been made effectual, it has been 
by the subsequent legislative ratification by States. Compare ante, p. 244, 
n. 2. Since the notel, on page 196, was in type Mr. Dana's article, entitled 
" Nullity of the Emancipation Edict," has appeared in the North American 
Review, August, 1880. 



348 THE PLACE OF SOVEREIGNTY. 

How such Revolution may be known. 

investiture of supreme power in the nation or people as a 
mass, now so " overwhelmingly " asserted by the general 
public, that the courts of law, both of the States and of the 
general Government, may, should, or must recognize this 
by accepting the general consequences involved as already 
indicated ? 

In an inquiry of this sort, it is almost inconceivable that 
any statement of the prevailing opinion should be gen- 
erally received as satisfactory. Only a few- suggestions as 
to the nature of the inquiry can here be offered. 

It is obvious that in such an inquiry the readiest and 
best evidence should be found by learning, as far as pos- 
sible, upon what ground, or what theory of political obli- 
gation, the measures of the Government as against the 
Rebellion and those of the reconstruction period were, in 
the estimation of the great bulk of the people, to be 
justified ; whether they were to be defended as constitu- 
tional, or only submitted to, though held unconstitutional. 
In settling a question of fact of this kind, the opinion of 
those who had opposed those measures as resting on the 
supposition that the general Government, as representing 
the people as a mass, was superior or sovereign in relation 
to the States, and the opinion of those who had supported 
those measures on the same ground are equally strong as 
testimony. For, since the measures themselves have actu- 
ally been carried out, or are now accomplished facts which 
all have accepted as facts, either willingly or unwillingly, 1 

1 In making this inquiry, acquiescence in or obedience to political rule is 
referred to as evidence of the possession of political dominion by those whose 
rule is so obeyed. But some who attribute the Constitution of 1787 to the 
legislative will of the nation as a mass have spoken of " the acquiescence 
and obedience of the people " to the Government organized under that Con- 
stitution as being an exhibition of sovereignty by that people : as in Story's 
Comm. § 216, quoting Patterson, J., in Penhallow v. Doane, 3 Dallas, 54; 
and Chase, J., in Ware v. Hylton, 3 Dallas, 199, — which is quite a different 
thing. Compare ante, p. 322, note 3. 



THEORY OF OUR NATIONAL EXISTENCE. 349 

Public Opinion — how discerned. 

the basis on which they must stand, in relation to the 
Constitution, is indicated by the adverse as well as by the 
favorable opinion. 

This line of testimony would naturally lead the inquirer 
among a variety of assertions more or less directly con- 
nected with the prospective aims of the political parties of 
the day. So far as any of these could be taken to express 
the belief of individual citizens, in connection with any 
such party, as to past transactions, they would all be 
equally entitled to a consideration in an estimate of gen- 
eral opinion. The subject of inquiry is the opinion, on a 
question of fact, of the people of the country as a collec- 
tion of individuals, each severally capable of having an 
opinion ; and the judgment of persons from every section, 
South or North, must be equally worthy of attention. 

Moreover, if any general policy is now politically sup- 
ported by one school, party, or section, and politically 
opposed by another school, party, or section, as leading to 
measures which now would be constitutional, though their 
constitutionality before the war might have been denied, 
or was doubtful, the action of both schools, parties, or 
sections might be taken as testimony that such a change 
had occurred or had begun to be made effectual. 

There is besides a class of opinions which, as they pro- 
fess to be, or from the position of their authors must be 
presumptively taken to be, in the nature of testimony on 
the political fact, may more especially be referred to in 
this inquiry. This class is to be found in portions of the 
periodical literature of the country and in the pages of 
writers who occupy the combined standpoints of the critic, 
the jurist, and the historian, and who present themselves 
as writing, not with a view to promote this or that politi- 
cal end or policy, but to furnish a guide for the present 
and a memorial for the future citizen. 

So far as such writers may testify to the question 



350 THE PLACE OF SOVEREIGNTY. 

Judicial Opinions on the Question. 

whether a revolutionary change in the possession of sov- 
ereignty has occurred, their opinions are important as tes- 
timony ; but so far as they may rest their view of the 
present location of supreme power on history earlier than 
1861, their statements are open to the same comparison 
with the record and their inferences to the same excep- 
tions, as before that date. 

It will, I do not doubt, appear political and legal heresy 
to many if I class the " opinions " delivered by judges in 
support of judgments in cases at law, including those of 
members of the Supreme Court of the United States, with 
the statements of private writers above described, — so far 
as they bear on the present inquiry ; that is to say, if I 
should hold that, as indications of the location of sov- 
ereignty, these opinions are only testimony, and can be 
nothing else. 

The doctrine that the Supreme Court has, under the 
Constitution, power to determine the political powers of 
the general Government and of the States, or that it can, 
in other words, settle, by its opinion as a court, the loca- 
tion of sovereign power, has been always more or less ex- 
tensively asserted from the first establishment of the 
Government under the Constitution, and also has had, 
probably, increasing acceptance up to the present time ; 
independently of the question whether the Government, 
of which the judiciary is a part, has become, by revolution, 
the representative of the sovereign found in the nation as 
a mass. 

Such a power, if it existed in the past, must have been 
derived either from the language of the Constitution, as 
law, or from the nature of the court, as a court of law. 

The language of the Constitution in this connection 
agrees with the nature of all courts of law, and the power 
claimed could not be based upon either. 

There is. no question as to the finality of the judgment of 



THEORY OF OUR NATIONAL EXISTENCE. 351 

Position of the Supreme Court. 

the Supreme Court in each case coming within its juris- 
diction, as defined in the Constitution ; nor any question 
whether such a judgment is to be carried into execution by 
the whole force of the Government, civil and military, or 
can be resisted by citizens or by a State or States only at 
their peril. In this respect, however, the court is in no 
other or better position than the tribunals, great or small, 
of any civilized country. 

But it ought not to be necessary for any one brought up 
with a knowledge of the common law of England and 
America to be told that, even under that development of 
unwritten law, it has never been claimed that the opinion 
of the judge made the law. He should know that the 
growth of law from adjudged cases is a totally different 
thing ; and that one great purpose of all written or statu- 
tory law is to limit such juristical induction from adjudged 
cases. 

I am, however, ready to admit, and desirous to point 
out, that the correctness of this view of the character of 
the judicial function, as exercised by the' courts of the 
general Government, itself depends upon that very ques- 
tion of fact, on which the opinions of the court are here 
regarded as giving testimony. This view assumes that the 
court is in the same position as the courts of other civilized 
countries, in relation to the knowledge of the rule which 
it applies as law in cases coming before it ; that is, that it 
applies the Constitution as law, with the idea that it is the 
legislative will of a known sovereign, who has instituted 
the court, as well as the other branches of the Govern- 
ment, to be an instrument for the execution of its will, but 
without identifying itself with that Government. 

But, under the theory or doctrine which makes the 
general Government a supreme or sovereign government, 
independently of the existence of the States in a voluntary 
union, and which presents that Government as the organ 



352 THE PLACE OF SOVEREIGNTY. 

Position of the Supreme Court. 

of sovereignty vested in the people or nation as a mass, it 
is clear, to my mind, that the Supreme Court is in a very 
different position, as to the law it will administer, from the 
judiciaries of other countries. In being part of such a gov- 
ernment, its judicial function is also a political function; 
whether it may assume to decide on the propriety of the 
powers exercised by the executive and legislative function- 
aries of the general Government, or may limit itself to 
accepting their assumption of powers as being a faculty of 
" the political department," for which the judiciary has no 
responsibility. 1 

Under this view of the position of the Supreme Court, 
it may well be held that the " opinions " of the justices are 
not merely juristical explanations of principles supposed to 
have determined the decision of a particular case, which 
decision may be collated or compared with other decisions 
in analogous cases, to furnish, by juridical induction, a gen- 
eral principle for later cases in the courts, but are, accord- 
ing to their unanimity in the particular case, political 
legislation, settling, as by decree of a sovereign, the pow- 
ers of the Government in the future. 

Under this view the court is, as has been claimed, " the 
final arbiter " of all questions of political power ; not 
merely in cases at law which may come before it, in which 
the extent of that power may be involved, but the final 
arbiter in the sense in which every ultimate possessor of 
supreme power is such. 2 

If this position is now claimed for the Supreme Court 
only on the basis of history before 1861, the claim is not 
different from any similar claim, if made by Marshall or 
Story, on their unsupported version of the origin of the 
Constitution in the will of the nation or people as a mass. 

1 Compare ante, p. 19, and note, and p. 213. 

2 The view here given, with the argument supporting it, is identical with 
that taken by Mr. Pomeroy, if I understand his language, in Const;. Law, 
§§ 123-128. 



THEORY OF OUR NATIONAL EXISTENCE. 353 

Statement of Opinion as possibly held. 

But if made as only now belonging to the court, or only 
since a date later than 1861, the claim may be regarded as 
part of the testimony to a revolutionary change, which has 
made the general Government a sovereign or supreme gov- 
ernment in respect to the States. * 

In the nature of the case, any attempt to marshal and 
weigh, in one or many ordinary volumes, testimony of 
these descriptions and the various other indices of public 
belief would be presumptuous. But, for the scope of this 
essay, it is enough that the opinion may be generally or 
perhaps " overwhelmingly " adopted, especially in those 
parts of the country where the greater number of popula- 
tion, greater physical resources and material wealth are 
located, and which, besides, include topographically the 
States occupying the best strategic position, 2 that sover- 
eignty is now held without reference to the existence of 
the /States, or of the organized political peoples of the States 
in voluntary union, as political personalities capable of self- 
continuation by having the ultimate power to determine 
the elective franchise in each State for the State and for 
the general Government, and that it is now vested in the 
aggregated millions, the inorganic people, the nation as a 

1 The long note 32, in Mr. Dana's Wheaton, entitled " The United States 
a Supreme Government," presents a history of the civil war, mostly in re- 
lation to international law. The editor speaks of " the republic of the United 
States," meaning the general Government, as " the final judge in a dispute 
between itself and the State as to the limits of its sphere," in connection with 
the statement that " the doctrine more generally received is, that the people 
of the entire republic as a political community created the republic, as the 
people of each State created the separate States." He also concludes, '• It 
is enough to say that the supremacy of the republic within its sphere to 
determine the limits of its sphere is now settled," — meaning, apparently, 
settled by the result of the war. Compare remarks ante, p. 324, note. 

2 That is in reference to the other parts of the country, in the supposed 
case that this, as " the great point of the debate, "should at a future time come 
"after all other modes of debate had been exhausted, to be referred to the 
arbitrament of battle," adopting Mr. Curtis's language. Ante, p. 89, note. 
As to the question of force, generally, see ante, p. 146. 



\ 



354 THE PLACE OF SOVEREIGNTY. 

The Doctrine shown in the Action of the Government. 

mass, the " sovereign people," in that sense, now repre- 
sented by the general Government, which therefore is now 
a supreme or sovereign government, without reference to 
the existence of States in a voluntary union. 

It may, I think, be affirmed with truth that the general 
policy, sj'stem, or political method followed by the Gov- 
ernment in suppressing the Rebellion as the rebellion of 
States — a policy which was continued by the reconstruc- 
tion measures, in treating those States as still members of 
the Union, though to be dealt with as delinquent States, 
whose obligations toward the general Government, or the 
nation represented by the general Government were to be 
enforced by that Government — was founded on this idea. 1 

But, as this idea or doctrine had no support in the his- 
torical record before 1861, this general policy must be 
regarded as now legitimated by revolutionary action, 
whether it has been the action, of the people of the whole 
country as a mass, or of the majority of such people, or of 
the stronger portion of such people, though perhaps only a 
minority. 2 

1 Ante, p. 321. For the justification of this opinion I must rely on the 
review of these methods presented in the earlier chapters. Of course, I do 
not ignore opinions like that of Mr. G. T. Curtis, who has seen no incompat- 
ibility between the measures of the Government and the continued existence 
of the eleven States, — as appears from his article, "A Strong Government," 
in Harper's Magazine, — June, 1880, p. 106. In continuing the passage cited 
ante, p. 304, from the " Discourse " Mr. Curtis speaks of the war having settled 
that the powers of the general Government " remain definite, specific, and lim- 
ited; that the rules for determining their limitations remain just what they 
always were ; and that they can be enlarged or increased or diminished only 
by the process of amending the Constitution. Every principle which marks 
the dividing line between the sovereignty of the United States and the sov- 
ereignty of each separate State remains in full force." But such conclusions 
involve the idea of the Constitution operating by its own intrinsic force as a 
law for the division of sovereign power. Compare ante, p. 298. As said in 
the beginning of this essay, the war could not settle anything. It is the 
action of the Government, as a government, which exhibits the political 
doctrine. 

2 There is no possibility of demonstrating that the Constitution and the 
Government under it ever had support in the choice of a numerical majority 



THEORY OF OUR NATIONAL EXISTENCE. 355 

The Usurpation, — how proved. 

Therefore, it may also be said with historic truth that, — 
in supporting this general policy, system, or political 
method, and in sustaining measures which, on the supposi- 
tion of the continued existence of the eleven States as members 
of the Union, were in violation of the letter and spirit of the 
written Constitution — the people of the Northern States 
consented to a usurpation on the part of the persons con- 
stituting the general Government ; that is, not merely to 
a temporary usurpation of power over those eleven States of 
the Confederacy and their inhabitants, but to a usurpation 
of powers previously vested in the political peoples of the 
States remaining in voluntary union, — the only " United 
States " then known as sovereign to history and by their 
own public law or political Constitution.^ 

But when a revolution is recognized, there should be 
an end of all controversies based on an earlier history. 
There is no question of constitutionality or unconsti- 
tutionality in a revolutionary change. The only alterna- 
tive for anybody is to accept the change by making the 
best of it,Vor to resist it and take the consequences; 
which choice of alternatives is about equal to liberty to 
decide whether there has or has not been a revolution 
at all. 1 

of the nation as a mass of individuals. Least of all, that it had such sup- 
port during the Rebellion and in the reconstruction era, when great differ- 
ences of opinion at the North were known to exist. All that is demonstrable 
is, that an executive and congress and judiciary, sustained by the voters, 
acting by majorities, in the States remaining voluntarily united, carried 
their will into execution. But it is not impossible, even if it be improbable, 
that the majority of the whole nation, as one mass of individuals, were 
more or less opposed to that will. 

1 In its ordinary acceptation, " revolution " is a shifting of the seat of sov- 
ereign power, not merely a change of law by the will of the sovereign. The 
proposition that " the people," or all the persons governed, are always of 
necessity the real sovereign (comp. ante, p. 325) appears to involve the 
possibility of sovereignty in revolution, or what Mr. Jameson calls irregular 
exercise of sovereignty as against regular exercise of sovereignty. Const. 
Conv. §§ 56, 569. Not meaning the acquisition of sovereignty by some who 
before had been subject, nor a shifting of the seat of sovereignty, but the 



356 THE PLACE OF SOVEREIGNTY. 

Position of the Judiciary in Revolutions. 

If, then, the Supreme Court should have supported, or 
should hereafter support, as justified by a new state of 
political facts, and independently of changes in the 'written 
Constitution by Amendments, any methods of government 
or congressional legislation which it might before the war 
have held unconstitutional, it may not be necessarily 
proper to speak of such action of the judiciary and " the 
political department " as usurpation. If a new state of 
political facts may be supposed to have resulted from the 
will of the unorganized nation or people, as against the 
organized nation, or people of the- States in a voluntary 
union, the decisions of the court and the action of the 
executive or of Congress will be only the consequence of a 
revolution, for which no persons should, from the mere 
fact of their personal connection with the Government 
when existing under the earlier condition of things, be 
held responsible as usurpers. 

With the conceptions which we have accustomed 
ourselves to cherish of the Constitution as a self-acting 
machine for determining or preserving the location of 
sovereign power, it is difficult for us to acknowledge not 
only that it is possible for persons holding' the executive, 
legislative, and judicial functions under the written Con- 
stitution, as law, to take this view, without regard to the 
historical question as it stood before the war, but even that 
it has become their clear duty. That it is so now is not be- 
cause they had sworn to support the Constitution as a law, 
nor yet because they, as citizens, are bound by allegiance 
to those, whoever they may be, from whom the Constitu- 

revolutionary act of the people, as sovereign, against some government 
supposed to exist only as the organ of such sovereign people. Writers who 
find sovereignty inherent in the people as a mass are obliged to assume that 
revolutions are always the intelligent act of a large majority of the com- 
munities in which they occur. In point of fact it is impossible to prove, in 
the case of any recorded revolution, that it was by the desire of a majority, 
and in most cases revolutions have been obviously the work of a minority. 



THEORY OF OUR NATIONAL EXISTENCE. 357 

How Revolution is accepted by a Court. 

tion at any moment may derive its authority as law, 1 but 
because, by this theory or doctrine, they, collectively or as 
a government, alone represent or stand for a sovereign 
nation, which, without them, would not be known as a ' 
sovereign nation at all. 

This being the primary political fact, it is, moreover, 
plain that it is now obligatory on each and every one, 
whether official or private person, to obey this Government 
as the only sovereign ; and the duty of all citizens, native 
or naturalized, to defend and maintain this Government as 
the only claimant of their allegiance. 

As has already been indicated, 2 this question — whether 
such change has occurred — is one which judges cannot 
determine in virtue of their office ; but they must, each 
one for himself as a private citizen, make up their minds 
by the only evidence which settles such a question, — his- 
tory, brought down to the present moment, — agreeing, as 
each one of us must, that whenever the bulk of the com- 
munity may recognize any present possession of sovereign 
power, whether different from an older one or not, courts 
of law must accept such possession as fact if they consent 
to be courts of law at all. 

It might be thought plain enough from the very defi- 
nition of the term " revolution " that any who will rest 
on the idea of a revolution must exclude all support either 

1 If a formal oath of allegiance has been unknown in this country, it has 
been so because nobody could say to whom it was clue by any of the theories 
heretofore acknowledged. Compare ante, pp. 274, 298, 329 and notes. The 
common opinion may be that the American citizen acknowledges no al- 
legiance to anybody. U. S. Rev. Stat., § 1756, prescribe an oath for a 
person taking office, — that he " will support and defend the Constitution of 
the United States against all enemies foreign and domestic," and " will bear 
true faith and allegiance to the same," meaning apparently to the Consti- 
tution. This is another manifestation of the " fetish." The faith and alle- 
giance can be due only to human beings. The alien, on being naturalized, 
is only sworn " to support the Constitution of the United States and re- 
nounce allegiance to every foreign prince, potentate, State, or sovereignty." 

2 Ante, p. 5. 



358 THE PLACE OF SOVEBEIGNTY. 

Probability of two misleading Tendencies. 

from any asserted basis in an earlier history or from any 
foundation in abstract political principles ; as, also, that 
any who will rest on previous history, or on deduction 
from, abstract principles, must exclude all support from a 
revolution. 
' Yet, as long as there is a doubt whether " the bulk of 
the community," to use Austin's expression, recognize 
or accept such a revolutionary change as the fact, or, to 
use Mr. Lowell's phrase, whether " the people are over- 
whelmingly united " in wishing such a change, any one 
who has sworn to support the Constitution as law may feel 
himself in a somewhat embarrassing position. For, as 
has already been indicated, 1 the legislative and executive 
powers of the general Government must be greatly aug- 
mented if it is hereafter to stand in the relation of politi- 
cal superior to the States ; that is, to the political peoples 
of the several States, as well as the State governments.] 

Under such circumstances it would not be strange if 
those who speak as jurists, whether on the bench or in 
private station, desiring to avoid the charge of being them- 
selves revolutionists, should follow the well-beaten track of 
Marshall, Story, Webster and others attempting to " escape 
history " and, instead of recognizing a new location of 
sovereign power, as by a revolution, should endeavor to 
persuade themselves and other people that this had always 
been the political fact. 

It may be also anticipated that, under the same circum- 
stances, the disposition to construe any written Constitution 
according to one's subjective views of political expediency 
will be likely to divert the jurist from the proper objective 
recognition of existing political facts. This disposition, the 
existence of which is unavoidable, has always been more 
or less traceable in our juridical literature, and the more 
visibly when unprecedented events have called for new ap- 

i Ante, pp. 342-345. , 



THEORY OF OUR NATIONAL EXISTENCE. 359 

Revolution by juristical Argument. 

plications of the fundamental laws, — applications which 
may be called either innovations or conservative measures 
according to the political theory by which they are tested. 

There can be no need to refer particularly to any 
judicial opinions pronounced during the last twenty 
years, or any earlier period of our history, as illustrat- 
ing this. 

This same disposition might be indulged even to the 
extent of inducing some jurists to fancy that they should, 
of themselves and aside from the evidence in the opinion 
of the general public, recognize in certain events a politi- 
cal revolution, a change in the location of sovereign power, 
if in their individual view of political expediency such a 
revolution should seem to be called for as a benefit to the 
nation or to maintain national life. 1 

But any person who may support a supposed investiture 
of sovereignty, either by a false citation of the historical 
record, or by making his own political predilections the 
criterion of the legitimacy or of the existence of political 
changes, would, instead of avoiding the recognition ot 
revolution, make himself one of the instruments for effect- 
ing it. 

In the lectures already referred to, 2 entitled " Revolution" 
and Reconstruction," p. 9, Judge Parker said, — 

1 It had been so common for Americans to speak of " the right of revo- 
lution " (see ante, p. 189, note) that the action of the Government in for- 
cibly resisting secession seemed inconsistent to some foreign observers. 
(See ante, p. 154, note.) Successful revolution originates legal rights, whether 
it is morally justifiable or not. Arguments against the validity of the 
secession ordinances founded on moral considerations may be found in many 
judicial opinions, and it might be inferred from their language that some of 
our judges and text-writers think that the revolution of 1776 would not 
have been followed by the consequences of successful revolution unless 
it could be held justifiable as resistance to illegal action of the Crown and 
Parliament. Compare Cooley's Principles of Const. Law, p. 25. This habit 
of thought might lead to juristical discovery of political change, founded 
on individual views of political expediency. 

2 Ante, p. 268, note 2. 



360 THE PLACE OF SOVEREIGNTY. 

Judge Parker on revolutionary Construction. 

" I shrink from revolution, masked under the cover of an as- 
sumed constitutional authority derived from false constructions of 
the Constitution ; . . . and more especially do I look with dread 
to the future when we have entered upon such a revolution, not 
with the honest confession that it is a revolution we are seeking, 
that we are exercising powers aside from and beyond the Con- 
stitution and endeavoring to change the powers of the Government 
by a resort to measures which the Constitution does not authorize ; 
but instead thereof are attempting to give the cloak of consti- 
tutional authority to the adoption of such measures by most un- 
warrantable constructions of the fundamental law, — constructions 
which pervert its meaning, and render it no longer a safeguard 
against despotic power." 

I have hereinbefore argued that the political measures 
which Judge Parker was opposing might, as a whole, be 
sustained because, under the true theory of our national 
existence, the so-called " Confederate States " had ceased 
to be States, that is, political members of the Union. But 
if the various other theories upon which these measures 
had been based by their different advocates at that time 
have no historical foundation in our public law, Judge 
Parker was sufficiently justified in denouncing them as 
revolutionary. 1 

"When revolutions are accomplished facts there is no use 
in shrinking from them ; at any rate, it is impossible to 
get out of their way, however distasteful they may be. 
But if Judge Parker thought that this way of effect- 
ing a revolution, through juristical perversion of history 
and political construction of written law, was not, on 

1 Judge Parker in this place refers to a lecture delivered bj 7 the Bussey 
professor, Judge Emory Washburn, closing the previous term of the Harvard 
Law School, entitled "The Duty of the Profession to the Times," which 
Judge Parker appears to have understood as teaching that a reorganization 
of the government of the country was to be sought for by means of new 
constructions and interpretations of the written Constitution by that portion 
of the community which had received legal training. The portion of the 
lecture by Judge Washburn referred to is printed in the Monthly Law Re- 
porter, July, 1864, p. 481. 



THEORY OF OUR NATIONAL EXISTENCE. 361 

Future Position of the general Goverment. 

the whole, as easy or economical a way as the ordinary 
method, by sheer force, he might naturally say that he 
shrank from the prospect offered by attempting to bring it 
about in that manner. 

There is reason enough for thinking it a poor way ; for 
the attempt, by escaping history in this manner, had been 
going on ever since the Constitution was adopted ; while 
the courts and the profession, to say nothing of the country 
at large, had always been in disagreement, before " the 
great point of the debate," as to the location of sov- 
ereign power, came " to be referred to the arbitrament of 
battle." i 

But, as already intimated, there may be much reason to 
think that this theory or doctrine — that sovereignty is 
now vested in the nation as a mass of so many millions 
of persons — is now so "overwhelmingly " asserted by the 
general public, independently of all such juristical en- 
gineering, that, on the jninciple already stated, it must now 
be accepted for political truth, whatever history before the 
war may declare. 2 It will therefore be now necessary that 
the general Government should recognize it by taking the 
position of being the sole representative of sovereignty 
known to our public law, — a position which, being once 
fully established, makes the name of " national Govern- 
ment " an eminently proper designation. 3 I 

1 Ante, p. 89. And now those who say that it has been decided by that 
"arbitrament" are no more in harmony as to the decision than they had been 
as to the issue to be decided, Mr. G. T. Curtis holding that the division of 
sovereignty between the States and the Government has been established, 
while Mr. Pomeroy and Mr. Jameson hold that it is the unitary possession of 
sovereignty, each assuming his own theory established by the military success 
which, of itself, proves nothing whatever. Ante, pp. 3, 4. 

2 Ante, p. 348. 

3 In my earlier work, Law of Freedom and Bondage, i, p. 408, the term 
"national Government" was preferred, not as indicating that the Govern- 
ment was superior to the States, according to the idea above described, but 
because, in acting through that Government for common ends, the States, 
united, constituted a nation. In the preceding pages of this essay the term 



862 THE PLACE OF SOVEKEIGNTY. 

Future Construction of the Constitution. 

But if this position of the general or national Gov- 
ernment, instead of being merely the continuance of its 
former relation to the States and the people, has been the 
result of a political revolution, the judiciary of the whole 
country, and all who apply the Constitution as written law, 
may be obliged to disregard much that had forrnerty been 
affirmed, in the Supreme Court and elsewhere, as to the 
recognition of -the text of the Constitution, and still more 
as to its construction and interpretation. 1 

It is therefore not improper to inquire whether the Su- 
preme Court, especially, has indicated any conception of a 
new relation between the general Government and the 
States, as founded on new political conditions ; relying on 
the history of the present, so to speak, and no longer look- 
ing for guidance to that of the past. 

In its application by courts of law, any written Consti- 
tution is like a statute. An existing text, or form of 
words, is to be recognized in the first instance, and after- 
wards this text is to be explained or construed in its appli- 
cation to legal relations. 

These questions, therefore, are always proper : — 

1. How will the court recognize future changes in this 
written law ? 

2. By what canons will the court construe or interpret 
its provisions ? 

"general Government" has been employed with the wish to avoid any 
suggestion of political preference which might be attributed to using either 
the term "national" or the term "federal." 

1 "Among those who profess to be the special advocates of national 
rights are also persons of extreme views, some of whom contend that the 
nation is to be considered the fountain and source of all sovereignty, and that 
the States are emanations from it, — a view that would change radically the 
rules of constitutional construction which the courts have laid down." 
Cooley's El. of Const. Law, p. 34.. I had {ante, p. 114, note) classed this 
author with those to whom he refers in this passage, judging from his argu- 
ment in Constitutional Limitations, pp. 5, 6 ; but from the more recent 
work, it may be inferred that he adheres to the theory of a division of sov- 
ereignty, as in the citation from the same book, ante, p. 106, note. 



THEORY OF OUR NATIONAL EXISTENCE. 363 

Possible Extent of Change by Amendments. 

As to the first inquiry, it must here be assumed that, 
whatever political change may have hitherto occurred, no 
variation in the letter of the Constitution will be recog- 
nized in any court of law unless found in some Amend- 
ment supposed by the court to have been adopted in the 
manner provided in the existing Constitution. 

If the theory under which the Constitution is the record 
of a treaty or compact between independent sovereigns x is 
excluded, there would appear to be no limit assignable 
for the possible alteration of the written Constitution by 
Amendments. Under any other view it always would be 
Bupposable that the States by the action of three fourths of 
their number might grant or surrender to the general Gov- 
ernment all the powers over their citizens originally spoken 
of as " reserved " to themselves, 2 and thus cease to exist 
politically as the sources of law and government, con- 
tinuing, perhaps, as geographical districts in an elective 
system for maintaining the personnel of the national 
Government under a law of Congress. 

Even under the theory that the States in union had been 
the autonomic source of power, 3 no such transfer of political 
rights by Amendments could be called revolutionary in 
the ordinary sense, 4 supposing each State to have acted 
freely. 

1 Ante, pp. 99, 100. 

2 According to the view hereinbefore expressed (ch. iv.), the States, in 
union, " reserved " these powers, as possessing them before. It has been 
growing more and more common to use the phrase — " reserved to the States 
by the Constitution " — as if " reserved " was equivalent to granted or assigned 
by the act of somebody superior to the States, who might be the hypo- 
thetical " people " or " nation." {Ante, p. 114.) As already contended [ante, 
p. 119), no powers could be granted or surrendered by the States to the general 
Government, because the latter had no independent existence. It could hold 
power only by delegation. (Ante, p. 131.) But if this Government is now 
capable of making its own existence its moral end, as representative of " the 
people " or the nation as a mass, its powers are no longer delegated, but be- 
long to it by right of possession above law. 

8 Ante, pp. 139, 140. 

4 No government continues without more or less constant alteration. 



364 THE PLACE OF SOYEEEIGNTY. 

Adoption of Amendments. — How known. 

It may always have been matter of doubt, under any 
theory, whether the actual adoption of any Amendment can 
be passed upon by the judiciary, if the question should be 
raised in a case at law depending on the effect of such 
Amendment ; that is, whether, under any theory, the Su- 
preme Court could refuse to recognize, as an Amendment, 
provisions which had been declared by another department 
to hare been actually adopted according to the terms of 
the constitutional requirements. 

It was hereinbefore contended that the question of the 
existence or non-existence of a State or States of the 
Union, to be counted among the whole number of which 
three fourths may adopt an Amendment, must be purely 
political and beyond the cognizance of the judiciary. 1 But 
though this be admitted, still the judiciary may occupy a 
different position as to the question whether an existing 
State of the Union had or had not exerted a power, regu- 
lated by the Constitution as law, to maintain which, as 
law, all the States are concerned. 

The only indications of opinion, bearing on this inquiry, 
given by the Supreme Court are those in some of the cases 
already cited, 2 in which it appears to have been the in- 
tention of the judges to leave the question of the actual 

Burke said, "A state without the means of some change is without the 
means of its conservation." Some transmission of sovereignty is always 
going on. But, as I understand the term, a "revolution" which nobody 
knows anything of is, by definition, no revolution. Mr. Jameson dis- 
tinguishes revolutions of three classes, the third being "such as are con- 
summated quietly, without a breach of the peace or even excitement, 
often without a distinct perception on the part of the people of their occur- 
rence" (Const. Conv. p. 101), which is a singular definition, considering 
the author's theory that " the people " are the sovereign, if revolution in- 
volves disturbance of sovereignty. The revolution which I have supposed 
possible is, on the contrary, to be proved, if at all, by the conscious recog- 
nition of " the people " ; not one to be displayed by juristical legerdemain, 
or the process dreaded by Judge Parker (ante, p. 360). 

i Ante, p. 284. 

2 Georgia v. Stanton, 6 Wall. 50, ante, p. 213; White v. Hart, 13 "Wall. 
649, ante, p. 19. 



THEORY OP OUR NATIONAL EXISTENCE. 365 

Adoption of Amendments. Position of the Judiciary. 

adoption of an Amendment entirely to the discretion of 
some other department of the general Government, as 
being a political question as distinguished from a legal one. 

It may be said that each judge, in accepting his com- 
mission from the executive, under the laws of Congress, 
recognizes that the existence of the Constitution, as a politi- 
cal question, is settled for him by the action of the other 
functionaries of the Government as a " political depart- 
ment." From this it might be argued that the existence 
of an Amendment, as part of that Constitution, must be 
equally a political question, and that as such it is equally 
determined for each member of the judiciary by such 
"political department." 

On the other hand, it may be said that the adoption of 
an Amendment takes place under the Constitution itself, as 
law; that the Amendment, therefore, differs, as to the con- 
ditions of its first recognition by the courts, from the 
previous recognition, by each justice individually, of the 
Constitution as political fact. This consideration might 
appear to bring the question of its adoption within the 
sphere of judicial cognizance, if the rights or duties de- 
pending upon its existence as law should be brought in 
question by a legal controversy. 

The case may be supposed that it should be perfectly 
well known that among the three fourths reckoned by the 
" political department " as having adopted a proposed Amend- 
ment there were some States which had not been equally 
free with the others in accepting or rejecting such Amend- 
ment. 1 But whether the judiciary, by receiving the testi- 

1 " The three constitutional Amendments . . . were adopted by the con- 
current action of the great body of good citizens who maintained the 
authority of the National Government and the integrity and perpetuity of 
the Union at such a cost of treasure and life, as a wise and necessary em- 
bodiment of the just results of the war. The people of the former slave- 
holding States accepted these results," etc. President Hayes's Second Annual 
Message, Dec. 2, 1878. Macpherson's Handbook for 1880, p. 3. Prom this 



366 THE PLACE OF SOVEREIGNTY. 

State Action in adopting Amendments. 

mony of another department as conclusive in that instance, 
could be thought to have individually sanctioned a revo- 
lutionary usurpation depends mainly upon the theory of 
our national existence which may be recognized. 

For, whatever inference might be drawn from any other 
theory, the States could not be entirely autonomic in the 
adoption of Amendments under that theory which makes 
all the capacities of a State of the United States an exercise 
of rights under a law prescribed by the sovereign nation or 
people, immediately represented by a supreme national 
government. 1 It would seem that the State's faculty of 
action in respect to the acceptance of any Amendment 
proposed by Congress would, under such a theory, have also 
some of the characteristics of a duty, which would at the 
same time imply the co-existence of a power in some other 
hands to enforce it as such. 

The question of the actual adoption of an Amendment 
by any one or more States never having been raised in the 
courts, it will be matter of conjecture upon what theory 
the judges may confide in the " political department " for 
knowledge of the action of three fourths of the States. In 
the absence of decisions, the topic is so far only political, 
in distinction from legal, that as yet it has hardly been 
brought by text-writers within the sphere of constitutional 
jurisprudence. But as the matter now stands, a juristical 
prognostication on this subject may be worthy of consider- 
ation on account of its political significance. 

In " The Constitutional Convention " § 83, Mr. Jameson 
has observed, — 

language it would naturally be inferred that the Southern States were not 
estimated in the adoption of these Amendments, and also that it is proper for 
" the political department " to distinguish, by their opinions on the subject 
matter of the Amendments, certain " good citizens " as the proper authority 
for adopting such Amendments. 
1 Compare ante, p. 350. 



THEORY OF OUR NATIONAL EXISTENCE. 367 

A Suggestion by Mr. Jameson. 

" But it is not enough that a Constitution provide a mode for 
effecting its own amendment ; it is necessary that there should be 
developed a political conscience, impelling to make amendments in 
the written Constitution when such as are really important have 
evolved themselves in the Constitution as a fact. Our courts can, 
in general, recognize no law as fundamental which has not been 
transcribed into the book of the Constitution. "When great his- 
torical movements, like those which have lately convulsed the United 
States, have resulted in important political changes, that are so con- 
summated and settled as to indicate a solid foundation in the actual 
Constitution, they should be immediately registered by the proper 
authority among the fundamental laws. Why embarrass the courts 
and fly in the face of destiny by refusing to recognize accomplished 
facts ? A point of honor should in such cases be cultivated, com- 
pelling the citizen to acquiesce in the decrees of the Almighty as 
written in events, similar to that which forces an English minister, 
on an adverse division upon an important measure, to resign his 
office. If political self-abnegation cannot, under written Consti- 
tutions, be developed to the extent indicated, it may be laid down as 
certain that no commonwealth governed by such a Constitution 
can long survive." 

It may well be said that no commonwealth has ever 
survived the cultivation of a point of honor which is simply 
a surrender of individual opinion, by one set of citizens, 
on the demand of another set of citizens. It used to be 
thought that the main object of written constitutions was 
to prevent anybody, whether in or out of office, from re- 
quiring "political self-abnegation" of his fellow-citizens 
in the names of destiny and of the decrees of the Al- 
mighty. 

On reading language of this sort in works dealing with 
the foundations of republican institutions, it is worth our 
while to remember that " great historical movements like 
those which have lately convulsed the United States " 
naturally produce in all minds some exaltation of the 
imaginative at the expense of the reasoning powers. 



368 THE PLACE OP SOVEREIGNTY. 

Question of a Rule of Construction. 

The next subject of inquiry — viz., By what canons will 
the court now construe or interpret the actual provisions 
of the Constitution ? — gives occasion for considerations 
which may seem more important only because their appli- 
cation is more immediately practical. 

Arguing from the nature of courts of law in all civilized 
countries, it must be taken for granted that the rules for 
the construction of the written Constitution heretofore 
followed by the Supreme Court will continue to be rec- 
ognized, unless modifications have become necessary in 
consequence of some revolutionary change. 

The only question, then, is, Has the court already indi- 
cated a purpose to construe the written Constitution as if 
a revolution had taken place ? 

It was not, perhaps, to be expected that the recognition 
of anything like revolution should be even suggested in 
any of the conflicting opinions delivered in the cases cited 
in the earlier chapters. It is true that the main inquiry in 
those cases was, essentially, as to a political fact, that 
is, the existence or non-existence, as members of the 
Union, of certain States ; and the conclusion to be drawn 
from the recognition, by all three branches of the Gov- 
ernment, of the continued existence of those States has 
herein been presented as involving usurpation on the part 
of that Government, which may have been legitimated by 
a revolutionary change in the possession of sovereign 
power. But, considering the point of time at which those 
cases arose, it must be supposed that the several members 
of the court had not then thought of any such ground for 
justifying the action of the Government, but exercised 
their judicial function solely in view of what they sup- 
posed to have been the conditions of political existence 
before the war or before the era of reconstruction. 

The decisions, therefore, which may possibly indicate 
judicial recognition of some investiture of political sov- 



THEORY OF OUR NATIONAL EXISTENCE. 369 

Political Effect of the Amendments. 

ereignty as newly established since the close of the war 
must be sought in cases of somewhat later origin, also 
involving the powers of the general Government. 

The cases which may naturally be first thought of as 
belonging to this class are those which have arisen under 
the application of the last three Amendments. But, for 
the reasons already given, 1 however wide-reaching may 
be the changes which these Amendments have made in 
the distribution of power between the general Government 
and the States, they could not, independently of possible 
questions as to the validity of their adoption, 2 be regarded 
as revolutionary in the ordinary sense of the word. 

As has been herein already said, it is possible to conceive 
of such a delegation of political power by the States to the 
general Government, by means of Amendments, as would 
subject the entire written Constitution to a new rule of 
construction. 3 If the power of determining the elective 
franchise in each several State should be at any time 
given to Congress, the political peoples of the several 
States would thereby surrender their self-determining indi- 
vidual existence, and would cease to be what I have herein 
all along supposed them to have been from the era of their 
declaration of their independence, — possessors, in union, 
of sovereignty as a unit, forming, as States in union, a 
sovereign nation. On the other hand, the general Gov- 
ernment, in acquiring by this change a self-determining 
and self-continuing existence, would become the essential 
sovereign. 

It may be proper to inquire whether some recent decis- 
ions do not indicate that the court proposes hereafter to 
construe the Constitution with the new Amendments as if 
this change had already taken place, or were at least begun 
and now in progress, and in taking this course, proposes tc 

1 Ante, p. 363. 2 Ante, p. 283. 8 Ante, p. 363. 



THE PLACE OF SOVEREIGNTY. 



Three Classes of Cases. 



rely either on the indications of these Amendments or on 
those of some recent political events. 1 

The cases which are here noticed in such inquiry are 
such as presented, — 

1, A question arising immediately under one of these 
Amendments, or — 

2, A question under some legislation of Congress founded 
on such an Amendment, or — 

3, A question of power or jurisdiction not directly 
dependent upon any of these Amendments. 

The earliest cases of the first class are the so-called 
Slaughter House Cases, 16 Wall. 86, where the question 
was of the power of the court, under the Fourteenth 
Amendment, as law, to control the action of the State in 
the matter of sanitary police. 2 Mr. Justice Miller, deliver- 
ing the opinion of the majority, which was against giving 
such a construction to the Article, said (ib. 82) : — 

" The adoption of the first eleven amendments to the Constitu- 
tion, so soon after the original instrument was accepted, shows a 
prevailing sense of danger at that time from the Federal power. 

1 Hereafter, it may perhaps be necessary for writers on constitutional 
law to distinguish and class the decisions of the court, on some topics, as 
they may have been rendered either before or after the war and the era of 
reconstruction. If this should be the case, the term " reconstruction " must 
be taken in a wider sense than that in which it has been applicable to the 
eleven States of the Confederacy only. It should indicate a reorganization 
of the whole political dominion previously known to the world as the 
United States, being, in effect, equivalent to a revolution. 

2 Munn v. Illinois, 4 Otto, 113, is a case very similar to this in its con- 
nection with the Fourteenth Amendment. Waite, Ch. J., delivered the 
opinion of the court. Field, J., delivered a dissenting opinion, in which 
Strong, J., concurred. 

In Minor v. Happersett, 21 Wall. 162, arising on a claim of Mrs. Virginia 
Minor, a citizen of Missouri, to be registered as a voter, — Held, that the 
right of suffrage was not necessarily one of the privileges or immunities of 
citizens before the adoption of the Fourteenth Amendment, and that it does 
not add to these privileges and immunities. It simply furnishes additional 
guaranty for the protection of such as the citizen already had. The right 
to vote is derived from the political authority of the State. 






THEORY OP OUR NATIONAL EXISTENCE. 871 

The Slaughter House Cases. 

And it cauuot be denied that such a jealousy continued to exist 
with many patriotic men until the breaking out of the late civil 
war. It was then discovered that the true danger to the perpetuity 
of the Union was in the capacity of the State organizations to 
combine and concentrate all the powers of the States and of the 
contiguous States for a determined resistance to the general Gov- 
ernment. 

" Unquestionably, this has given great force to the argument and 
added largely to the number of those who believe in the necessity 
of a strong National government. But, however pervading this 
sentiment, and however it may have contributed to the adojition of 
the Amendments we have been considering, we do not see in those 
Amendments any purpose to destroy the main features of the gen- 
eral system." 

As far as I am aware, no member of the Supreme Court 
has taken these Amendments as indicating " a purpose to 
destroy the main features of the general system," or as 
being revolutionary in that sense, or in any degree more 
so than any other Amendments might be. 1 But whether a 
jurist sees such " purpose," in any Amendments whatever, 
must depend very much upon the idea he had adopted 
beforehand of " the main features of the general system." 

A " purpose " implies the pre-existence of somebody 
who may have entertained it, and whose powers are such 
that his purposes are material. It is pertinent in a politi- 
cal inquiry to ask, Who is it that the court recognizes as 
having had the power and the purpose, whatever it may 
have been, which is to be sought in these or in any 
Amendments ? 

It might have given some political significance to these 
historical statements if the court had indicated who it is 

1 Some justices, however, have thought that, in supporting certain powers 
claimed under the new Amendments, the majority had given them a revo- 
lutionary construction. This appears from their dissenting from that con- 
struction on the ground that these Amendments are not in the nature of 
revolution. Compare the dissenting opinions by Field and Clifford, JJ., 
in ex parte Virginia, 10 Otto, 361, 363, 370. Post, p. 382. 



372 THE PLACE OF SOVEREIGNTY. 

Cases of the First Class. 

that wills that there should be any union at all, or desires 
its " perpetuity," or even its present continuance, and who 1 
it was that " discovered " the danger, and who must be 
trusted to take measures to avert it. 

It would have increased the interest of students of 
public law in such judicial attempts at writing American 
history, if the members of the court which gave its high 
sanction to these expressions had, on this or on some other 
occasion, explained how, this "general Government" or 
this "Union" could come into existence, or continue to 
exist, otherwise than by " the capacity of the State organi- 
zations to combine and concentrate all the powers of the 
State and the contiguous States " for any purpose they 
might think proper, or how, when the States may cease to 
exercise this capacity for these ends, this Government 
proposes to maintain its existence or " the perpetuity of 
the Union." 

If the court meant that this " capacity of the State 
organizations " was exhibited in the attempted secession of 
eleven States, it may be asked, How has the " danger " 
then " seen " been diminished by these Amendments ? 
They do not make secession any more illegal or null than 
it was before. Nothing that has been said or done since 
1861 has made the duty of the citizen of a seceding State 
one particle more clear, under any theory of our national 
existence which the Supreme Court may have advanced. 
The Amendments do not indicate anything of the sort ; 
and in the opinion of the majority, their sole object or pur- 
pose was to carry out the policy of the emancipation of 
persons of negro race by the power assumed by the gen- 
eral Government during the war. 

On this point it is said in the opinion (ib. 67) : — 

" The most cursory glance at these articles discloses a unity of 
purpose, when taken in connection with the history of the times, 
which cannot fail to have an important bearing on any question of 



THEORY OF OUR NATIONAL EXISTENCE. 373 

The Slaughter House Cases. 

doubt as to their true meaning. Nor can such doubts, when any 
reasonably exist, be safely and rationally solved without reference 
to that history ; for in it is found the occasion ajid the necessity for 
recurring again to the great source of power ia this country, — the 
people of the States, — for additional guarantees of human rights ; 
additional power to the Federal Government; additional restraints 
upon those of the States." 

In their political bearing, these remarks suggest the 
questions, Who was it that, perceiving the necessity- 
referred to, recurred to the great source of power in this 
country? and Who are "the people of the States" who 
put restraints upon the power of the States, if not the 
States themselves ? 1 

But one may search in vain the records of the Supreme 
Court for answers to these questions. Although these 
Amendments were adopted but yesterday, by the action of 
three fourths of the States, the court here speaks of them 
as if they too, like the original Constitution, were of some 
supernatural origin — a manifestation of uncreated essence 
— now existent by their own intrinsic force, without the will 
of the States which were said to have " adopted" them. 

Mr. Justice Bradley, in his dissenting opinion, made a 
somewhat different reference to recent history, as giving the 
true index to the construction of this Amendment. His 
statement is (ib. 123) : — 

"The mischief to be remedied was not merely slavery and its 
incidents and consequences ; but that spirit of insubordination and 
disloyalty to the National government which had troubled the coun- 
try for so many years in some of the States, and that intolerance 
of free speech and free discussion which often rendered life and 
property insecure, and led to much unecmal legislation. The 

1 In the words, " people of the States," there may be some intimation of a 
political superior who is not the nation as a mass. In Judge Swayne's dis- 
senting opinion, " the public mind " appears as the source of the Amend- 
ments (j'6. p. 128). In Judge Bradley's, it is " the national yearning " which 
" had a voice given " to it in the Amendment (ib. p. 123). 



374 THE PLACE OF SOVEREIGNTY. 

Bradley and Swayne, JJ., dissenting. 

amendment was an attempt to give a voice to the strong National 
yearning for that time and that condition of things in which Ameri- 
can citizenship should be a sure guaranty of safety, and in which 
every citizen of the United States might stand erect on every por- 
tion of its soil, 1 in the full enjoyment of every right and privilege 
belonging to the freeman, without fear of violence or molestation." 

On p. 124 Mr. Justice Bradley remarks : — 

" The great question is, What is the true construction of the 
amendment ? AVhen once we find that, we shall find the means of 
giving it effect. The argument from inconvenience ought not to 
have a very controlling influence in a question of this sort. The 
National will and the National interest are of far greater im- 
portance." 

On reading such historical statements the inquiries oc- 
cur, Who is this not-come-at-able somebody who is to 
remedy the mischief alluded to, or any other one ? Who 
is it that decides that what Judge Bradley calls " the 
spirit of insubordination," etc., was a mischief at all, or 
who wills that there should be either free speech or any- 
thing else ? and who is the person that can give or deny 
a voice to, or even feel, the " national yearning " spoken 
of? What right has a judge to know a national will and 
a national interest which has not been made known through 
the States in union ? In other words, who is the sover- 
eign, if not the States which, as States in union, have 
given or withheld assent to these Amendments, as well as 
to the original Constitution? 

In the same imaginative vein, Mr. Justice Swayne said 
in this case (ib. 128) : — 

" These amendments are all consequences of the late civil war. 
The prejudices and apprehension as to the central government 
which prevailed when the Constitution was adopted were dis- 
pelled by the light of experience. The public mind became satis- 

1 Is the singular pronoun used to indicate that the soil is the soil of • 
unitary political body ? 



THEORY OF OUR NATIONAL EXISTENCE. 375 

The Slaughter House Cases. 

fied that there was less danger of tyranny in the head than of 
anarchy and tyranny in the members." 

In accordance with this metaphorical language, it must 
be supposed that it is this intellectual "head" which 
alone is cognizant of a " public mind," and that the States, 
being "members" to be directed by this "head," have no 
" mind " in the matter of a public mind. 1 

But this expression of this dissenting Justice is quite in 
harmony with other parts of his several opinion, in which 
he proposed to construe this Amendment simply by his 
own individual views of what the distribution of power 
under a Constitution ought to be ; while, on the same 
page he remarks, " Our duty is to execute the law, not to 
make it." Mr. Justice Swayne said (ib. 129) : — 

" The power is beneficent in its nature and cannot be abused. It 
is such as should exist in every well-ordered system of polity. 
Where could it be more appropriately than in the hands to which 
it is confided? It is necessary to enable the government of the 
nation to secure to every one within its jurisdiction the rights and 
privileges enumerated, which, according to the plainest consid- 
erations of reason and justice, and the fundamental principles of 
the social compact, all are entitled to enjoy. Without such 
authority, any government claiming to be national is glaringly 
defective." 

May it be proper to suggest that this argument has a 
strong resemblance to reasoning in a circle ? The matter 
in issue is, how far the individual rights of natural per- 
sons are entrusted to a certain government. If it be 
proper to call a government " national " only in the case 
that these rights have been entrusted to it, the claim to 
be "national" depends on the answer to the question 

1 In Mr. Justice Strong's opinion in Tennessee v. Davis, 10 Otto, 2(53, 
the States are presented as " members " of the general Government, — " the 
operations of the general Government may at any time be arrested at the 
will of one of its members." 



376 THE PLACE OP SOVEREIGNTY. 

The Slaughter House Cases. 

whether they have been so entrusted to it. The question 
cannot be decided by assuming the propriety of the name. 

In these dissenting opinions, as also in the opinion of 
the court, it seems to be assumed that the rights referred 
to must necessarily be better protected if confided to one 
general government than they would be if entrusted to 
the States. 1 This is mere assumption. But, if correct, it 
should have no weight in a court of law ; unless, indeed, 
the Supreme Court in the future is to determine, by the 
justices' private theories of political good and evil, the 
distribution of all political power, in which case a written 
constitution is quite superfluous. 2 

The opinion and decision of the court in these cases 
were sustained by five Justices against a minority of four, 
including Chief Justice Chase, who, however, did not de- 
liver a separate opinion. Some passages in the dissenting 
opinions might be noticed as representing the basis of 
individual rights in this country as having been alwaj's 
derived from a law of general or national extent, and not 
from the local law of a colony or State (compare Field, J., 
16 WaU. 104, 105 ; Bradley, J., ib. 112-120),— a view which 
it is, at least, difficult to sustain by history. Mr. Justice 
Swayne's opinion rests rather on the idea of a transfer, 
indicated in this Amendment, of all individual rights to a 
" national " law, that is, a law to be maintained by a " Na- 
tional" government. 3 

1 Ante, p. 370. This is in accordance with ideas now prevalent, which 
are founded on recollections of the later history of slavery on this continent. 
It seems to be forgotten that, had the power over personal status been given 
to a general government at the formation of the Union, the abolition of slav- 
ery could not have taken place, as it did, by the separate action of one 
State after another until the free States became the majority. Had the 
power been otherwise located, a secession war might have originated in a 
quarter and from a motive quite opposite to those which were held respon- 
sible for the late civil war. 

2 Compare ante, p. 352. 

3 In the dissenting opinions the term " National," in the opinion of the 
court the term " Federal," is employed. 



THEORY OF OUR NATIONAL EXISTENCE. 377 

Cases of the second Class. 

I have noticed more particularly the opinions of the dis- 
senting Justices in this case, as indicating their construction 
of the Constitution under a political theory, on account of 
the share which the same judges had in later cases, herein- 
after to be noticed. 

Among the cases of the second class as above distin- 
guished, that is, the cases arising under the legislation of 
Congress based upon powers given by the new Amend- 
ments, the cases United States v. Reese, 2 Otto, 214, and 
United States v. Cruikshank, ib., 543, are of some interest, 
although the constitutionality of the Act of Congress on 
which they were founded was not involved in the judg- 
ments. 

The first of these cases arose on an indictment in the 
United States Courts, under Sections 3 and 4 of the so- 
called Enforcement Act, 1 against certain State inspectors 
of a municipal election in Kentucky for refusing to receive 
the vote of a colored citizen, under a dispute as to his 
payment of tax ; that being a condition precedent required 
of all voters under the State law. 

The second case arose under Sec. 6 of the same Act, on 
indictment in the United States Court for conspiracy in 
the State of Louisiana, in intimidating two persons, citi- 
zens of the United States, " of African descent, and per- 
sons of color," and preventing them from the enjoyment 
of certain rights. 2 

1 Act of May 31, 1870, 16 U. S. Stat. 140, " An Act to enforce the Rights 
of Citizens of the United States." 

2 Chief Justice Waite, delivering the opinion of the court in this case (2 
Otto, 550), when referring to the preamble of the Constitution, spoke of " the 
people of the United States " as having " ordained and established the gov- 
ernment of the United States, and defined its powers by a constitution." 
The record referred to declares that it was the Constitution which was 
so ordained and established. The term " the government of the United 
States " is used only in Art. I. sect. 8, p. 18, — " powers vested by this Con- 
stitution in the," etc. The variation is significant as indicating the ap- 
proaches to that theory which makes the written Constitution the law of 



378 ' THE PLACE OP SOVEREIGNTY. 

The Virginia Cases. 

In each of these cases the indictments, as framed, were 
held not sustainable under the Act of Congress. 

Of greater importance among the cases of this class are 
the so-called West Virginia and Virginia cases. 1 

Strauder v. West Virginia, 10 Otto, 303, arose under 
Sec. 641 of the Revised Statutes 2 of the United States, 
providing for the removal of cases from the State courts to 
the courts of the United States, under certain circum- 
stances. The court speaks of it as " an advanced step, 
fully warranted, we think, by the fifth section of the Four- 
teenth Amendment." The plaintiff in error, a colored 
man, had been indicted for murder, tried, convicted, and 
sentenced in the State court. The ground of removal was 
that "by virtue of the laws of West Virginia, no colored 
man was eligible to be a member of the grand jury or to 

a sovereign government (comp. ante, pp. 342, 343), as distinguished from a 
law of a distinct sovereign of which that government is a subordinate instru- 
ment. It is in accordance with this that the judge says, " The government, 
thus established and defined, is to some extent a government of the States 
in their political capacity. It is also, for certain purposes, a government 
of the people," meaning, apparently, by " of," — over States and over 
people. The judge also speaks of "rights granted to the people by the 
Constitution," without distinguishing the people grantors from the people 
grantees. The Chief Justice in the same place indicates his acceptance of 
the divisibility of sovereignty, — "a citizenship which owes allegiance to 
two sovereignties, and claims protection from both." Adding, " The citizen 
cannot complain, because he has voluntarily submitted himself to such a 
form of government." This recalls some of the propositions in Chisholm v. 
Georgia, and shows that the doctrine of a social compact still has vitality. 

1 Decided, October Term, 1879. The majority opinions in these cases 
may be found in Macpherson's Handbook of Politics for 1880. 

2 Which declares that " when any civil suit or criminal prosecution is 
commenced in any State court, for any cause whatsoever, against any per- 
son who is denied or cannot enforce, in the judicial tribunals of the State, or 
in the part of the State where such prosecution is pending, any right 
secured to him by any law providing for the equal civil rights of citizens of 
the United States, or of all persons within the jurisdiction of the United 
States, . . . such suit or prosecution may, upon the petition of such defendant, 
filed in said State court at any time before the trial or final hearing of the 
cause, stating the facts, and verified by oath, be removed before trial into 
the next circuit court, to be held in the district where it is pending." 



THEORY OF OUR NATIONAL EXISTENCE. 379 



The Virginia Cases. 



serve in a petit jury in the State." The Supreme Court 
held that the plaintiff's rights,' under the Fourteenth 
Amendment, and under the statutes of the United States 
enacted to sustain that Amendment, 1 had been infringed, 
and reversed the judgments of the State courts. The opin- 
ion of the court was delivered by Mr. Justice Strong. 
Justices Clifford and Field dissented. 

Virginia v. Rives, 10 Otto, 314, was also a case under 
Sec. 641 of the Revised Statutes, on the petition of the 
State for a writ of mandamus against Judge Rives, of the 
United States Circuit Court, to restore to the custody of 
the State court two colored men, who were under in- 
dictment for murder, and who were then held on habeas 
corpus from the Circuit Court. That writ had been granted 
on their petition, showing that the State court had over- 
ruled their first motion, — " that the venire, which was 
composed entirely of the white race, be modified so as to 
allow one third thereof to be composed of colored men," 
and that their application to the court and the prosecut- 
ing officers — that " a portion of the jury by which they 
were to be tried should be composed in part of com- 
petent jurors of their own race and color" — had been 
refused them. 

The Supreme Court granted the mandamus, on the 
ground that the refusal of a mixed jury did not " amount 
to any denial of a right secured to them by any law pro- 
viding for the equal rights of citizens of the United 
States." (lb. 322.) 

In the opinion of the court, by Mr. Justice Strong, it is, 
however, said : — 

" It is a right to which every colored man is entitled, that, in the 
selection of jurors to pass upon his life, liberty, or property, there 



1 Sections 1977, 1978, of Rev. Stat. 



880 THE PLACE OF SOVEREIGNTY. 

Ex parte Virginia. 

shall be no exclusion of his race, and no discrhninatioa against 
them because of their color." {lb. 322.) 

It appears from the report that, in Virginia, there was 
no statutory limitation to white persons, of those liable 
to serve as jurors. 

Justices Clifford and Field concurred in the judgment, 
but expressed in separate opinions the ground of their 
concurrence, as they did not agree with all the views ex- 
pressed in the opinion of the court. 

The distinction taken in this case is further indicated in 
the decision of Ex parte Virginia, 10 Otto, 339, a case 
arising under the Act of Congress commonly called the 
Civil Rights Bill, 1 in the constitutionality of which the 
whole merits of the case were, in the opinion of the court, 
involved. {lb. 343.) 

In the Supreme Court the decision was on the petition 
for a habeas corpus, and for the discharge of J. D. Coles, 
who was in custody under an indictment in the District 
Court of the United States, charged with having violated 
the provisions of the statute, by not having placed on the 
jury lists for the State and county courts any other than 
white persons, when acting as judge of the State county 
court. 

The Supreme Court sustained the indictment as a proper 
one in form, or on its face, under the provisions of the 
statute, and affirmed the power of Congress to enact such 
a law under the clauses of the Fourteenth Article of 

1 An Act to protect all citizens in their civil and legal rights, 18 U. S. 
Stat., part 3, 836. Passed, March 1, 1875. The indictment in this case was 
under Sec. 4, enacting that " no citizen, possessing all other qualifications 
which are or may be prescribed by law, shall be disqualified for service as 
grand or petit juror in any court of the United States or of any State, on ac- 
count of race, color, or previous condition of servitude ; and any officer or 
other person, charged with any duty in the selection or summoning of jurors, 
who shall exclude or fail to summon any citizen for the cause aforesaid, shall, 
on conviction thereof, be deemed guilty of a misdemeanor, and be fined not 
more than five thousand dollars." 



THEOKY OF OUR NATIONAL EXISTENCE. 381 

The Virginia Cases. 

Amendments, 1 and refused the petition for habeas corpus. 
Justices Clifford and Field, in an opinion delivered by 
the last, dissented (ib. 353), holding that the indictment 
was void on its face, and that the Act of Congress was not 
warranted by the Amendment. 2 

In these cases, the powers exerted by the legislature of 
the general Government were claimed solely on the grant 
of power made in the new Amendments. As already ob- 
served, no such grant of power can in itself be called 
revolutionary or an infringement of the political rights of 
the States. It was said by Mr. Justice Strong, in Ex parte 
Virginia, 10 Otto, 346 : — 

" Nor does it make any difference that such legislation is restric- 
tive of what the State might have done before the constitutional 
amendment was adopted. The prohibitions of the Fourteenth 
Amendment are directed to the States, and they are, to a degree, 
restrictions of State power. It is these which Congress is em- 
powered to enforce, and to enforce against State action, however pat 
forth, whether that action be executive, legislative, or judicial. 
Such enforcement is no invasion of State sovereignty. No law 
can be which the people of the States have by the Constitution of 
the United States empowered Congress to enact. . . . Every ad- 
dition of power to the general government involves a corresponding 
diminution of the governmental powers of the States." 3 

1 Article XIV. § 1. "All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens of the United 
States, and of the State in which they reside. No State shall make or en- 
force any law which shall abridge the privileges or immunities of citizens of 
the United States; nor shall any State deprive any person of life, liberty, 
and property, without due process of law, nor deny to any person the equal 
protection of the laws." 

§ 5. " The Congress shall have power to enforce, by appropriate legisla- 
tion, the provisions of this article." 

2 The same opinion is given by these Justices as the ground for their dis- 
sent in Strauder v. West Virginia. 

8 Of interest in connection with the American political notions about "ab- 
stractions" (ante, p. 291), is Judge Strong's expression, " the abstract thing 
denominated a State" (ib. 347), when speaking of a State of the United 
States. Compare also ante, 319, note. 



382 THE PLACE OF SOVEREIGNTY. 

Ex parte Virginia. 

It is from the same point of view that I here notice the 
opinions of the dissenting justices, Field and Clifford, in 
Ex parte Virginia. In the opinion written by Mr. Justice 
Field (10 Otto, 858), he observes:— 

" Nothing, in my judgment, could have a greater tendency to 
destroy the independence and autonomy of the States, reduce them 
to a humiliating and degrading dependence upon the central gov- 
ernment, engender constant irritation, and destroy that domestic 
tranquillity which it was one of the objects of the Constitution to 
insure, — than the doctrine asserted in this case, that Congress 
can exercise coercive authority over judicial officers of the States 
in the discharge of their duties under State laws. It will be only 
another step in the same direction towards consolidation, when it 
assumes to exercise similar coercive authority over governors and 
legislators of States." 

In the same opinion (ib. 361) it is said of the new 
Amendments : — 

" Aside from the extinction of slavery and the declaration of 
citizenship, their provisions are merely prohibitory upon the States, 
and there is nothing in their language or purpose which indicates 
that they are to be construed or enforced in any way different from 
that adopted with reference to previous restraints upon the States. 
The provision authorizing Congress to enforce them by appropriate 
legislation does not enlarge their scope, nor confer any authority 
which would not have existed independently of it. Xo legislation 
would be appropriate which should coutravene the express prohibi- 
tions upon Congress previously existing, as for instance, that it 
should not pass a bill of attainder, or an ex post facto law ; nor 
would legislation be appropriate which should conflict with the im- 
plied prohibitions upon Congress. They are as obligatory as the 
express prohibitions. The Constitution, as already stated, contem- 
plates the existence and independence of the States in all their re- 
served powers. If the States were destroyed, there could, of course 
be no United States. In the language of this court, in Collector v. 
Day, ' without them the general government itself would disappear 
from the family of nations: " 1 

1 Collector v. Day, 11 Wall. 120. In this case it was held that the salary 
of a judge of a State Probate Court could not be subject to the United Sta:es 



THEORY OF OUR NATIONAL EXISTENCE. 383 

The Political Question here raised. 

In the political relation in which all decisions and opin- 
ions of the Supreme Court are herein considered, the 
question is not whether these judgments are authorized by 
the letter of any one of the new Amendments ; it is whether 
the construction, given to them generally, as grants of 
power to Congress, by the majority of the court, does or 
does not involve the recognition of a new investiture of sov- 
ereign power in this country, or the ascription of the writ- 
ten Constitution and all Amendments to a sovereign source 
of law different from that from which the Constitution and 
Amendments had proceeded before the war, whatever that 
source may have been. 

In the Slaughter House Cases, the court intimates that 
the source of all such grants of power had always been 
the same, designating as such source " the people of the 
States." But in what sense these words are to be under- 
stood is as indeterminate in this instance as it had been 
in all instances of their use by the court's predecessors. 1 

As coming from a dissenting member of the court, 
the sentences last cited are more specially noticeable, in the 
political point of view, for the manner in which they pre- 
sent the written Constitution as the ultimate political fact 
upon which the existence of the States, as well as that of the 
general Government, depends. What Judge Field refers 
to as " prohibitions," " implied " in the Constitution, were 

income tax. This has often since been cited in the Supreme Court for its 
recognition of the sovereign nature of the powers held by the States. In 
another point of view it may be taken as a contribution to the false political 
theory of divisibility of sovereignty, with the idea that the powers exer- 
cised by tlie general Government are not powers belonging to the States 
themselves, in their union; because now vested in a distinct political person- 
ality, called " the United States," but who, as far as the States are con- 
cerned, is in the position of a foreign or alien sovereignty. Mr. Justice 
Bradley delivered a brief dissenting opinion, founded on a view of our 
public law, which, in its application to this particular case, may be accepted, 
without recognizing the extension given to it by the same judge in some 
opinions to be cited on a later page, 
i Ante, pp. 108-115, 312. 



384 THE PLACE OF SOVEREIGNTY. 

Field, J., in the Virginia Cases. 

really the political facts on which the Constitution rested 
for its authority as law ; that is, the existence and inde- 
pendence of the States as possessors, in union, not only of 
" their reserved powers," but -also of those powers which 
they had delegated to a common instrument, the so- 
called " government of the United States," existing under 
the law which they, in union, ordained and sustained. It 
had been these States which, in their union, were a member 
of the " family of nations," as they were before they con- 
stituted this general Government, which, of itself, is not 
now known in that family, and which had not been, as 
often miscalled, — the United States. 1 

In this fallacious reference to the nature of the Consti- 
tution, these sentences of the dissenting opinion are in 
accord with the general theory, supported by the majority 
of the court, of the subordination of the States to the cen- 
tral or general Government, claiming to be the sovereign, 
— the United States. 

But Mr. Justice Field speaks more appositely to the true 
point of view when he proceeds to say, — 

" Legislation could not, therefore, be appropriate which, under 
pretence of prohibiting a State from doing certain things, should 
tend to destroy it, or any of its essential attributes. . . . Indeed, 
the independence of a State consists in the independence of its 
legislative, executive, and judicial officers, through whom alone it 
acts. If this were not so, a State would cease to be a self-existing 
and an indestructible member of the Union, and would be brought 
to the level of a dependent municipal corporation, existing only 
with such powers as Congress might prescribe. 

" I cannot think I am mistaken in saying that a change so radical 
in the relation between the Federal and State authox-ities, as would 
justify legislation interfering with the indejjendent action of the 
different departments of the State governments, in all matters over 
which the States retain jurisdiction, was never contemplated by the 
recent amendments. The people in adopting them did not suppose 

l Ante, pp. 303, 315. 



THEORY OF OTJR NATIONAL EXISTENCE. 385 

Cases of the third Class. 

they were altering the fundamental theory of their dual system of 
governments." (lb. 862.) 

But, as already observed, it is still possible that a revolu- 
tionary change may have altered the fundamental theory 
referred to, even though it should not have been expressed 
in these Amendments ; and the question still is, whether 
these decisions can be sustained otherwise than on the 
assumption of such a political change. 1 

Even more important than the cases last cited, in the' 
relation in which the decisions of the Supreme Court are 
here referred to, that is, as indicating a political theory, 
are the cases which come under the third class, as above 
distinguished ; in which are considered new claims of 
power by the general Government, not made on the basis 
of any grant of power in the recent Amendments. 2 

The so-called Maryland Election Case, Ux parte Siebold 
and others, 10 Otto, 371, comes within this description. It 
was presented in the Supreme Court on the petition of 
certain persons for habeas corpus and their discharge from 
imprisonment under the sentence of a Circuit Court of the 
United States. The petitioners, having been,, under the 
State law, " judges of election," at an election in Baltimore 
in 1878, at which representatives to Congress were voted 
for, had been indicted in that Court under the law of Con- 
gress for having resisted the United States marshal and 

1 In a general connection with cases like the Slaughter House Cases, 
and with all the legislation based on the Fourteenth Amendment, attention 
may here be called to the preamble to the Act, Mar. 1, 1875 (ante, p. 880), — 
" Whereas, it is essential to just government we recognize the equality 
of all men before the law, and hold that it is the duty of government, in all 
its dealings with the people, to mete out equal and exact justice to all, of 
whatever nativity, race, color, or persuasion, religious or political ; and it 
being the appropriate object of legislation to enact great fundamental prin- 
ciples into law; Therefore," etc. 

This is indeed talking like a sovereign. The question occurs, When 
and how did a legislature, existing under the strict limitations of a law in a 
written Constitution, attain the position to " do it in Cambyses' vein " ? 

3 Ante, p. 370. 



386 THE PLACE OF SOVEREIGNTY. 

Ex parte Siebold. 

certain "supervisors " appointed by the United States cir- 
cuit judge, when interfering in such election, as was, it was 
claimed, their right and duty to do under certain provisions 
of the Revised Statutes of the United States. 1 

Some of the parties so indicted were also held under 
sentence for the act popularly known as " stuffing the 
ballot-box," described in the indictment as " a certain act 
not then and there authorized by any law of the State of 
Maryland, and not authorized then and there by any law 
of the United States, by then and there fraudulently and 
clandestinely putting and placing in the ballot-box of the 
said precinct twenty (and more) ballots (within the intent 
and meaning of section 5514 of said statutes) which had 
had not been voted . . . contrary to section 5515 of said 
statutes, and against the peace, government, and dignity 
of the United States." 2 

1 Rev. Stat. Title XXYT. " The Elective Franchise," sec. 2011. "The 
judge of the Circuit Court of the United States, wherein any city or town 
having upwards of twenty thousand inhabitants is situated, upon being in- 
formed by two citizens thereof, prior to any registration of voters for, or any 
election at which a Representative or Delegate in Congress is to be voted 
for, that it is their desire to have such registration or election guarded or 
scrutinized, shall open the circuit court at the most convenient point on the 
circuit." Sec. 2012. " The judge shall appoint two supervisors of election for 
every election district in such city or town." Sees. 2016, 2017, declare the 
duties and powers of such supervisors, and sees. 2021, 2022, those of mar- 
shals and their general and special deputies at such elections. These pro- 
visions were first enacted in the supplementary Act of Feb. 28, 1871,16 U. S. 
Stat. 433. 

- Sees. 5-506 to 5515 inclusive, consist of provisions originally found in 
the Acts of May 31, 1870, and of February 28, 1871, and are included in the 
Revised Statutes under Title LXX. c. 7, under the name, " Crimes against 
the Elective Franchise and Civil Rights of Citizens." In the opinion of the 
court (10 Otto, 380) Sec. 5515 is given, which reads: "Every officer of an 
election at which any representative or delegate in Congress is voted for, 
whether such officer of election be appointed or created by or under any law 
or authority of the United States, or by or under any State, territorial, dis- 
trict, or municipal law or authority, who neglects or refuses to perform any 
duty in regard to such election required of him by any law of the United 
States or of any State or Territory thereof; or who violates any duty so im- 
posed, or who knowingly does any acts thereby unauthorized, with intent to 



THEORY OF OUR NATIONAL EXISTENCE. 387 

Ex parte Clarke. 

In the so-called Ohio Election Case, Ex parte Clarke, 
10 Otto, 399, it was said in the opinion of the court : — 

" The principal question is whether Congress had constitutional 
power to enact a law for punishing a State officer of election for the 
violation of his duty under a State statute in reference to an elec- 
tion of a representative to Congress. As this question has been 
fully considered in the previous case, it is unnecessary to add any- 
thing further on the subject. Our opinion is, that Congress had 
constitutional power to enact the law ; and that the cause of com- 
mitment was lawful and sufficient/' lb. 403. 

It may be noticed that, in the indictments in the Mary- 
land case, the actions of the State officers are charged only 
as violations of the statute law of the United States. The 
only allusion to State authority is in the allegation that 
the acts charged were " not authorized by any law of the 
State." The cases, therefore, are essentially different, and 
we know only from the above passage that the argument 
for the court's opinion in the first case was intended to 
apply as well to the second, in which case the petitioner, 
being a State officer of election at an election for a repre- 
sentative to Congress in the city of Cincinnati, had been 
convicted of a misdemeanor in the Circuit Court of the 
United States, under sec. 5515 of the Revised Statutes, 
for a violation of the law of Ohio in not conveying the 
ballot-box, after it had been sealed up and delivered to 
him for that purpose, to the county clerk, and for allowing 
it to be broken open. 

affect any such election, or the result thereof; or who fraudulently makes 
any false certificate of the result of such election in regard to such Kepre- 
sentative or Delegate; or who witholds, conceals, or destroys any certificate 
of record so required by law respecting the election of any such Represent- 
ative or Delegate , or who neglects or refuses to make and return such cer- 
tificate as required by law ; or who aids, counsels, procures, or advises any 
voter, person, or officer to do any act by this or any of the preceding sec- 
tions made a crime, or to omit to do any duty the omission of which is by 
this or any of such sections made a crime, or attempts to do so, shall be pun- 
ished as prescribed in section fifty-five hundred and eleven." 



388 THE PLACE OE SOVEREIGNTY. 

The Maryland and Ohio Election Cases. 

Iii each of these cases the Supreme Court sustained the 
judgment of the Circuit Court and refused the habeas corpus. 
Mr. Justice Bradley delivered the opinion of the majority 
in both cases ; but the constitutional questions involved in 
the two cases were discussed principally in the opinion 
delivered in the Maryland case. 

The dissenting opinion which was delivered by Mr. Jus- 
tice Field, and in which Mr. Justice Clifford concurred, was 
more directly applicable to the question raised in the Ohio 
case, though given by them as defending their dissent in 
the other case also. 

In the opinion of the court delivered in Ex parte Siebold, 
10 Otto, 382, it is said : — 

" These portions of the Eevised Statutes are taken from the act 
commonly known as the Enforcement Act, approved May 31, 1870, 
and entitled ' An Act to enforce the right of citizens of the United 
States to vote in the several States of this Union and for other pur- 
poses,' and from the supplement to that Act, approved February 28, 
1871. They relate to elections of members of the House of Bep- 
resentatives, and were an assertion on the part of Congress of a 
power to pass laws for regulating and superintending said elections, 
and for securing the purity thereof, and the rights of citizens to vote 
thereat peaceably and without molestation. It must be conceded 
to be a most important power and of a fundamental character. In 
the light of recent history and of the violence, fraud, corruption, and 
irregularity which have frequently prevailed at such elections, it 
may easily be conceived that the exertion of the power, if it exists, 
may be necessary for the stability of our frame of government." 

Although the court here speaks of these provisions as 
part of the " Enforcement Act," 1 and also refers to some 

1 In Macpherson's History of Reconstruction, the Act of Congress so 
designated is arranged in a chapter under the general heading, " Fifteenth 
Amendment ; Votes on Ratification, Proclamation of Ratification, Bills enfor- 
cing and Votes thereon," p. 5-45. The Fifteenth Amendment reads : — 

" Sect. 1. The right of citizens of the United States to vote shall not be 
denied or abridged by the United States, or by any State, on account of race, 
color, or preyious condition of servitude. 



THEORY OF OUR NATIONAL EXISTENCE. 389 

The Maryland and Ohio Election Cases. 

recent events as the occasion for the exercise of the power, 
it should be noticed that, in the same opinion, this par- 
ticular legislation is not referred to any of the Amend- 
ments, but to a provision in the original Constitution itself. 
As stated by the court (ib. 383), — 

" The clause of the Constitution under which the power of Con- 
gress, as well as that of the State legislatures, 1 to regulate the elec- 
tions of senators and representatives arises, is as follows : ' The 
times, places, and manner of holding elections for Senators and 
Representatives shall be prescribed in each State by the legislature 
thereof; but the Congress may at any time by law make or alter 
such regulations except as to the place of choosing Senators.' " 

While the court had thus stated the question for its de- 
cision as one of power, the position relied on by the peti- 
tioners' counsel rendered any argument of that question 
almost superfluous ; and this seems to be the view taken 
by the court in this opinion. It being admitted, as it was 
as far as the merits of this particular case were concerned, 
that the word ''regulations" was equivalent to the whole 
statutory law applicable to the exercise of the elective 

" Sect. 2. The Congress shall have power to enforce this article by ap- 
propriate legislation." 

It is evident that most of the sections of that Act are based entirely on 
the tenor of this Amendment, and it is highly probable that the northern 
public have taken these other provisions, referred to in these cases, as con- 
nected in some way or other with the same Amendment. Very few proba- 
bly have ever thought of these provisions as based on an entirely distinct 
claim of power, and most persons have contemplated the Act as being "re- 
construction " only as far as the States of the Confederacy were to be affected. 
Compare ante, pp. 235, n. 1, 370, n. 1. 

1 Even in this apparently simple introduction of the grant of power to 
Congress (Art. I. sect, iv.,) there is a foreshadowing of political doctrine which 
is nearly equivalent to a prejudging of the whole question. It is intimated 
that in the matter of elections of senators and representatives the State gov- 
ernments and Congress are equally dependent on a grant of power in the 
Constitution. It is evident that Congress, which exists under the Constitu- 
tion, could have no power whatever unless specially granted in the Consti- 
tution by those, whoever fhey were, from whom it derives its authority, 
But it is equally evident that the States, whose existence was at least inde- 



390 THE PLACE OF SOVEREIGNTY. 

Ex parte Siebold. 

franchise in such elections, and that Congress might at any 
time bring this within the sphere of its exclusive legis- 
lation, 1 there was little room for argument on the mere 
language of the Constitution. It is therefore mainly as 
containing political doctrine, extending beyond the exi- 
gency of this particular case, that this opinion is specially 
noticeable ; and in this matter, even if judges could speak 
officially, their statements of history and their inferences 
from them are open to the criticism of all their fellow- 
citizens. 

The petitioners' argument confined the range of the 
question to the co-operation of two governments. The 
court distinguished "special" and "general" reasons as 
having been urged against this co-operation, observing of 
the first (ib. 391),— 

" "We have thus gone over the principal reasons of a special char- 
acter relied on by the petitioners for maintaining the general propo- 
sition for which they contend ; namely, that in the regulation of 
elections for Representatives, the national and State governments 
cannot co-operate, but must act exclusively of each other ; so that, 
if Congress assumes to regulate the subject at all, it must assume 
exclusive control of the whole subject." 

After this the court proceeds to say, — 

" The more general reason assigned, to wit, that the nature of 
sovereignty is such as to preclude the joint co-operation of two sov- 

pendent of the Constitution, would have had the entire control of the matter, 
even though nothing had been said in the Constitution beyond providing 
that there should be a Senate and House of Representatives. In this in- 
stance, as in so many others in judicial opinions, the latent idea is that the 
States in union are what they are because there is a Constitution ; while the 
fact has been that the Constitution was what it was because there were 
States in union. Compare ante, ch. IV. 

1 " The counsel for the petitioners, however, do not deny that Congress 
may, if it chooses, assume the entire regulation of the elections of Repre- 
sentatives." Opinion, 10 Otto, 382. This being admitted, and on saying, 
" In exercising the power, however, we are bound to presume that Congress 
has done so in a judicious manner" (ib. 898), there was no need of saying 
more. 



THEORY OF OUR NATIONAL EXISTENCE 391 

The Maryland and Ohio Election Cases. 

ereigns, even in a matter in which they are mutually concerned, is 
not, in our judgment, of sufficient force to prevent concurrent and 
harmonious action on the part of the national and State government 
iii the election of Representatives. It is at most an argument ab 
inconveniente. There is nothing in the Constitution to forbid such 
co-operation in this case. On the contrary, as already said, we think 
it clear that the clause in the Constitution relating to the regulation 
of such elections contemplates such co-operation whenever Congress 
deems it expedient to interfere merely to alter or add to existing 
regulations of the State." 

This mention of " the joint co-operation of two sover- 
eigns " recalls that supposed division of sovereignty which 
so mam' have thought exemplified in our polity. 1 In this 
particular application, the theory appears in a somewhat 
ludicrous light, where it is asserted in the same breath that 
in this action one sovereign is to be the instrument of the 
will and pleasure of the other. In the very next sentences 
the power of Congress is presented as "paramount," which 
makes the position of the other sovereign still more difficult 
of comprehension. 2 

The court proceeds to say, — 

" If the two governments had an entire equality of jurisdiction, 
there might be an intrinsic difficulty in such co-operation. Then 
the adoption by the State government of a system of regulations 
might exclude the action of Congress. By first taking jurisdiction 
of the subject, the State would acquire exclusive jurisdiction in 
virtue of a well-known principle applicable to courts having co- 
ordinate jurisdiction over the same matter. 3 But no such equality 

1 Ante, pp. 106, 295. 

2 Perhaps the petitioners' argument could be stated more correctly as 
urging that "co-operation" implies voluntary action by the two parties. 
The court's idea of co-operation might be likened to the co-operation of the 
cat and the monkey in pulling chestnuts from the fire. This may be " concur- 
rent and harmonious action " ; but where is the division of sovereignty 1 What 
is a sovereign cat's-paw ? 

3 The idea of co-ordinate jurisdiction is excluded bythe idea of sover- 
eignty. One must be aid Ctesar ant nullus. The parallel suggested above is 
another illustration of looking at a political question from the lawyer's point 



392 THE PLACE OF SOVEREIGNTY. 

Ex parte Siebold. Opinion of the Court. 

exists in the present case. The power of Congress is paramount, 
and may be exercised at any time, and to any extent it deems expe- 
dient ; and so far as it is exercised, and no farther, the regulations 
effected supersede those of the State which are inconsistent there- 
with." 

In the earlier part of the same opinion (ib. 383), it had 
been said in regard to the clauses relating to this subject 
in the Constitution, — 

" If not under the prepossession of some abstract theory of the 
relations between the States and the national Government, we 
should not have any difficulty in understanding them." 

And it is equally true that there is a necessity for some 
"prepossession," whether acknowledged or not. In the 
opinion, the question is stated as if it were only one of the 
distribution of powers between the State governments and 
the general Government under the written Constitution as 
law. This was the immediate question. But if, in the 
argument, the construction of the clause is based entirely 
on a view of " the relations " referred to, the political "pre- 
possession " of each judge joining in the opinion is essential 
to explain the force of the decision. 

The court argues (ib. 387), — 

"It is objected that Congress has no power to enforce State laws 
or to punish State officers, and especially has no power to punish 
them for violating the laws of their own State. As a general prop- 
osition, this is undoubtedly true ; but when, in the performance of 
their functions, State officers are called upon to fulfil duties which 
they owe to the United States as well as to the State, has the for- 
mer no means of compelling such fulfilment ? Yet that is the case 
here. It is the duty of the States to elect Representatives to Con- 

of view, starting with a document to be interpreted (Comp. ante, p. 109, n. 3). 
The functions of the one government may be thought more dignified or more 
" national " than those of the other. But the two governments are alike in 
this respect, — that they are each instruments of a political superior, and 
in that view they stand on the same level. Brownson, Am. Rep. 254. 



THEORY OF OUR NATIONAL EXISTENCE. 393 

Ex parte Siebold. 

gress. The due and fair election of these Representatives is of vital 
importance to the United States. The government of the United 
States is no less concerned in the transaction than the State gov- 
ernment is. It certainly is not bound to stand by as a passive 
spectator when duties are violated and outrageous frauds are com- 
mitted. It is directly interested in the faithful performance, by the 
officers of the election, of their respective duties. Those duties are 
owed as well to the United States as to the State. This necessarily 
follows from the mixed character of the transaction, — State and 
national. A violation of duty is an offence against the United 
States, for which the offender is justly amenable to that government." 

It depends entirely upon some political " prepossession " 
whether these propositions are not in flat contradiction to 
the Constitution, or at least a begging of the question. 
Under no theory of government known before the war 
were the State officials under any obligation to the general 
Government in their performance of their functions under 
the law of the State. Whatever may be the abstract truth 
as to the divisibility of sovereignty, it is certain that the 
plan of government was based on a distribution and sepa- 
ration of powers between two mutually independent agents, 
— the State governments and the general Government. 
Moreover, unless a revolution has taken place, it is not 
now, because it never had been before, " the duty of the 
States to elect representatives to Congress." 1 The only 
duties which the States owed, they owed as sovereigns owe 
duty ; but not as corporations under law. The United 
States — not meaning, as in this opinion is implied, the 
general Government, but the States in their union — were 
morally bound to each other and to every human being 
under their dominion. But they were not, either collec- 
tively or individually, under any duty to a Congress, an 
executive and a judiciary existing as their own instrument 
of general government, under their law contained in the 
Constitution. 2 

1 Ante, p. 305. 2 Compare ante, ch. IV. 



394 THE PLACE OF SOVEREIGNTY. 

Ex parte Siebold. Opinion of the Court. 

" The due and fair election of these representatives is 
of vital importance to the United States," that is, to the 
States in their union, as the sovereign. It is so also to the 
United States, as meaning a country and its population, or 
to each inhabitant of the United States. But what its im- 
portance may be to the government which, in this opinion, 
is identified with the United States, to the exclusion of the 
States themselves, is something that has not yet appeared. 
For it is begging the question, as one under the Constitu- 
tion as law, to say that the Government of the United 
States, meaning Congress, etc., is "concerned" as having 
power in the matter, or that it " is certainly not bound to 
stand by," etc. This Government, being only an agent 
and not a sovereign, has no concern in the determination 
of its own personnel, and is " bound " to do only what 
these States in union may have empowered it to do by 
the written instrument which rests upon their will, and 
not on the will of that Government. 

That State officials should be responsible only to the 
State which appoints them may be a bad arrangement: 
and so may the whole "frame of government." Bat the 
persons who constitute the general Government have no 
responsibility for that. The servant must take his place 
as he finds it." 

On page 393 it is said, in the opinion of the court, — 

" The views we have expressed seem to us to be founded on 
such plain and practical principles as hardly to need any labored 
argument in their support. We may mystify anything. But if 
we take a plain view of the words of the Constitution, and give 
them a fair and obvious interpretation, we cannot fail in most cases 
of coming to a clear understanding of its meaning. We shall not 
have far to seek. We shall find it on the surface, and not in the 
profound depths of speculation. 

" The greatest difficulty in coming to a just conclusion arises from, 
a mistaken notion with regard to the relations which subsist between 



THEORY OF OUR NATIONAL EXISTENCE. 895 

Political Doctrines in Ex parte Siebold. 

the State and national governments. It seems to be often over- 
looked that a national Constitution has been adopted in this country 
establishing a real government therein, operating upon persons and 
territory and things ; and which, moreover, is, or should be, as dear 
to every American citizen as his State government is. Whenever 
the true conception of the nature of this government is once con- 
ceded, no real difficulty will arise in the just interpretation of its 
powers. But if we allow ourselves to regard it as a hostile organi- 
zation, opposed to the proper sovereignty and dignity of the State 
governments, we shall continue to be vexed with difficulties as to 
its jurisdiction and authority." 

From the court's reliance, in the first paragraph, upon 
the " plain view of the words," etc., an intention to avoid 
any profundity, in the second, must be inferred. And 
every view of " the relation between the State and national 
governments " is superficial which assumes that these gov- 
ernments are the only persons concerned in the exercise of 
political powers, and is deceptive, also, if it presents them as 
two parties between whom sovereignty has been divided by 
a constitution assumed as self-existent law, and if it leaves 
out of view the fact that there must always be somebody 
in existence to whom its continuance from the time of its 
adoption is ascribable ; who certainly is neither the " na- 
tional " nor the State governments, separately or together. 
But this is what the court proposes to overlook, probably 
as being down in " the profound depths of speculation," 
and to present " the surface " view that, whatever the 
State governments may be, the general Government is a 
government in the sense of a sovereign personality, holding 
its powers by right of possession above law. 1 

1 This assumption, which derives its plausibility from using the word 
"government" in two senses (ante, p. 302), is also the basis of the political 
expansion which Judge Story, in Book. III., ch. xi. of his Commentaries, had 
given for legitimate construction of the constitutional grant of power, of which 
lie says, ib. sec. 816, "Its propriety rested upon this plain proposition, — that 
every government ought to contain in itself the means of its own preservation. 



396 THE PLACE OF SOVEREIGNTY. 

Ex parte Siebold. Opinion of the Court. 

The propositions upon which, in their general and sweep- 
ing application, the court here rests its decision, are not 
legal principles, but political doctrine. The court might 
have said that, with such a " prepossession of some abstract 
theory of the relations between the States and the general 
Government," it "could have no difficulty" in deciding 
any question of power. But the question remains whether 
such a "prepossession" is consistent with the continued 
political existence of the States in their union, and as to 
this every inhabitant of the land is called upon to have an 
opinion. 1 

Without disputing the correctness of a judgment of a 
court in a particular case, the language of its opinions may 
be open to criticism either for rhetoric or logic, as well as 
for political significance. 

In concluding the opinion in this case it is said (10 Otto, 
398),— 

If, in the Constitution, there were some departures from this principle (as it 
might be admitted there were), they were matters of regret, and dictated by 
a controlling moral or political necessity ; and they ought not to be extended." 
It never seems to have occurred to Judge Story that his regrets and views 
of what the Constitution ought to have been were not of the highest conse- 
quence in a professed interpretation of the Constitution. And what he has 
here assumed as the " principle " is in direct contradiction to the fact upon 
which the whole fabric was based, as shown by history. It is rather re- 
markable that the court in the opinion has made no reference to this chapter 
of the Commentaries. But, perhaps, such an exhibition of the possible ex- 
tent of the claim of power might have seemed unpropitious to the allow- 
ance of the much more modest pretensions of the Acts of Congress. 

1 He may be called on to do more than have an opinion. His liberty and, 
perhaps, life, may depend upon the question, What opinion is the true opin- 
ion ? In sec. 5522 of the Revised Statutes, among other acts declared crim- 
inal, it is mentioned that "every person . . . who refuses or neglects to 
aid and assist any supervisor of election or the marshal or his general or 
special deputies or either of them, in the performance of his or their duties, 
when required by him or them or either of them to give such aid and assist- 
ance, shall be liable to instant arrest without process, and shall be punished 
by imprisonment not more than two years, or by fine of not more than three 
thousand dollars, or by both such fine and imprisonment, and shall pay the 
cost of the prosecution." 



THEORY OF OUR NATIONAL EXISTENCE. 397 

Ex parte Siebold. Opinion of the Court. 

"In our judgment Congress had the power to vest the appoint- 
ment of the supervisors in question in the circuit courts." 1 

" The doctrine laid down at the close of counsel's brief, that the 
State and national governments are co-ordinate and altogether 
equal, on which their whole argument, indeed, is based, is only 
partially true. 

" The true doctrine, as we conceive, is this : that while the States 
are really sovereign as to all matters which have not been granted 
to the jurisdiction and control of the United States, the Constitution 
and constitutional laws of the latter are, as we have already said, 
the supreme law of the land; and when they conflict with the laws 
of the States, they are of paramount authority and obligation. This 
is the fundamental principle upon which the authority of the Con- 
stitution is based, and unless it be conceded in practice as well as in 
theory, the fabric of our institutions, as it was contemplated by its 
founders, cannot stand. The questions involved have respect not 
more to the autonomy and continued existence of the States than 
to the continued existence of the United States as a government, 
to which every American citizen may look for security and protec- 
tion in every part of the land." 

It is probable that many readers will think there -is noth- 
ing novel in this morsel of " true doctrine." So far as it 
is true, certainly, it is not new ; but as far as it is new, 
it is either not true or has become so only recently. It is 
absurd to say that the authority of the Constitution is based 
on its authority. This is assuming a constitution existing 
by its own intrinsic force. That the Constitution and the 
constitutional laws of the United States, that is, that Consti- 
tution and those laws which derive their authority from the 
will of the States, sovereign in their political union, are the 
supreme law of the land, nobody ever disputed. If this is 

1 In the opinion (10 Otto, 385) it is said, by way of argument, " Where 
the subject-matter is of a national character, or one that requires a uniform 
rule, it has been held that the power of Congress is exclusive." Has the 
Supreme Court the faculty of determining the "national character" of pow- 
ers as its means of construing the words of the Constitution ? May it be 
inferred that this statute is a "uniform rule," which only operates at the 
discretion of any two citizens ? 



398 THE PLACE OF SOVEREIGNTY. 

Political doctrines in Ex parte Siebold. 

the meaning of the court's language, still this summary of 
the opinion presents the same begging-the-question which 
attends the whole argument in detail. 1 But it is clear that 
" the United States," whose Constitution and laws are re- 
ferred to in this passage, are not the States being united, 
but a hypothetical somebody, who is invisible behind the 
Congress, executive, and judiciary, at Washington. The 
name — The United States — is in this passage used to 
designate " a government " supposed to hold sovereign 
powers by grant or cession, as in its own political right, 
and to apply the Constitution as its law, or as expressing 
its own will, and not as the law on which it depends for 
its existence. 

In the last sentences, as in so many other instances in 
earlier opinions, the States and the United States are pre- 
sented as two distinct political personalities. But in this 
case the mention of the autonomy and existence of the 
States as cared for in an assumption by Congress to control 
the elective franchise, on the argument that it is a trust in 
the States for the benefit of a " national " Government, has 
somewhat the air of mockery. 

But it is in the concluding words more especially that a 
novelty in doctrine may be intended, which is true only on 
the basis of revolution. It had been a mere truism that, 
so far as any American, whether called citizen or subject, 

1 Mr. Justice Field in his dissenting opinion (10 Otto, 420) remarked: 
" Much has been said, in argument, of the power of the general Government 
to enforce its own laws, and in so doing to preserve the peace, though it is 
not very apparent what pertinency the observations have to the questions 
involved before us. No one will deny that, in the powers granted to it, the 
general Government is supreme, and that, upon all subjects within their 
scope, it can make its authority respected and obeyed throughout the limits 
of the Republic ; and that it can repress all disorders and disturbances which 
interfere with the enforcement of its laws. But I am unable to perceive in 
this fact, which all sensible men acknowledge, any cause for the exercise of 
ungranted power. The greater its lawful power, the greater the reason for 
not usurping more." 






THEORY OF OUR NATIONAL EXISTENCE. 399 

Ex parte Clarke. The dissenting Opinion. 

may get any " security or protection," he must look to the 
United States, as the only possessors of sovereignty as a 
unit. Yet nothing in history is more apparent than the 
fact that his " security and protection " had not been con- 
fided to a general, central, or national government ; and, if 
it is so now, it will not be because the existence of that 
government continues to be what it was, but because it 
has, by some revolutionary change, now become the only 
possessor of sovereignty, and because the name " United 
States " has become a misnomer. 1 

The opinion delivered by Field, J., in the Ohio case, in 
which Clifford, J., concurred, was given as supporting 
their dissent in both cases, but is chiefly directed to the 
question whether, in their execution of the State laws, the 
State officials can be subject to the jurisdiction of the Fed- 
eral courts. 2 Only a few extracts, bearing most directly on 
the political question, can here be given. 

" The act of Congress asserts a power inconsistent with, and sub- 
versive of, the independence of the States. The right to control 
their own officers, to prescribe the duties they shall perform, with- 
out the supervision or interference of any other authority, and the 
penalties to which they shall be subjected for a violation of duty is 
essential to that independence. . . . Indeed, a State could not be 
considered as independent in any matter with respect to which its 
officers, in the discharge of their duties, could be subjected to pun- 
ishment by any external authority ; nor in which its officers, in the 
execution of its laws, could be subject to the supervision and inter- 
ference of others." lb 409. 

1 At the first session of the Forty-sixth Congress a bill passed both Houses 
containing provisions repealing some of the sections of the Revised Statutes 
relating to elections, the constitutionality of which was discussed in these 
cases. President Hayes returned the bill with his objections in a message, 
May 29, 1879. His reasoning, defending the constitutionality of the sections 
in question, was not essentially different from that of the Supreme Court in 
the Maryland case, except in his more decided reference to " public opinion " 
as supporting such legislation. The history of the bill, with the message in 
full, is given in Macpherson's Handbook for 1880, p. 116. 
2 See extract from the opinion of this court in ex parte Clarke, ante, p. 387 



400 THE PLACE OF SOVEEEIGNTY. 

Ex parte Clarke. Mr. Justice Field dissenting. 

The following paragraphs from the same opinion have 
a more general bearing on the political situation of the 
general Government, seen in the light of this and other 
decisions. 

" It is true that, since the recent amendments of the Constitution, 
there has been legislation asserting, as in the instance before us, a 
direct control over State officers, which previously was never sup- 
posed compatible with the independent existence of the States in 
their reserved powers. Much of that legislation has yet to be 
brought to the test of judicial examination ; and, until the recent 
decisions in the Virginia cases, I could not have believed that the 
former carefully considered and repeated judgments of this court 
upon provisions of the Constitution, and upon the general character 
and purposes of that instrument, would have been disregarded and 
overruled. These decisions do, in my judgment, constitute a new 
departure. . . . In my judgment — and I say it without intending any 
disrespect to my associates — no such advance has ever before been 
made toward the conversion of our Federal system into a consolidated 
and centralized government. I cannot think that those who framed 
and advocated, and the States which adopted the amendments con- 
templated any such fundamental change in our theory of govern- 
ment as those decisions indicate." — 10 Otto, 413. 

Further on in this opinion, Mr. Justice Field says of the 
clause in the Constitution relied upon in the argument to 
sustain the legislation in question, — it "does not, as it seems 
to me, give the slightest support to it," and proceeds to 
sustain his view by analysis of the provision, as of a statute, 
with the conclusion, — 

" If this view be correct, there is no power in Congress, inde- 
pendently of all other considerations, to authorize the appointment 
of supervisors and other officers to superintend and interfere with 
the election of Representatives under the laws of Ohio and Mary- 
land, or to annex a penalty to the violation of those laws, and the 
action of the circuit courts was without jurisdiction and void." 
— 10 Otto, 416. 



THEORY OF OUR NATIONAL EXISTENCE. 401 

Field, J., dissenting. An Inconsistency. 

But, immediately after this, Judge Field states a proposi- 
tion of a political nature, which, if admitted, may be taken 
to nullify all his preceding reasoning, being essentially the 
same doctrine as that upon which the majority opinion is 
constructed, and which amounts to this, — that the general 
Government does not exist for the benefit of the States in 
union, as its political superior, but that the States, in union, 
exist for the benefit of the general Government, as their 
political superior. 

Judge Field, in continuation, argues : — 

" The act of Congress in question was passed, as it seems to me, 
in disregard of the object of the constitutional provision. That was 
designed simply to give to the general Government the means of 
its own preservation against a possible dissolution, from the hostil- 
ity of the States to the election of Representatives, or from their 
neglect to provide suitable means for holding such elections." 

And to support this view the judge appeals to those un- 
happy ghosts — " the founders " — whom the majority of 
the court had already invoked, and who, though they had, 
while living, no authority to declare the meaning of the 
Constitution, have now the faculty of always giving testi- 
mony to suit any jurist who compliments them with a 
summons. 

" This is evident from the language of its advocates, some of them 
members of the convention, when the Constitution was presented to 
the country for adoption. In commenting upon it in his report of 
the debates, Mr. Madison said that it was meant ' to give the na- 
tional legislature a power not only to alter the provisions of the 
States, but to make regulations, in case the States should fail or 
refuse altogether.' — Elliott's Debates, 402. And in the Virginia 
convention, called to consider the Constitution, he observed, ' It was 
found impossible to fix the time, place, and manner of the election 
of representatives in the Constitution. It was found necessary to 
leave the regulation of these, in the first place, to the State govern- 
ments, as being best acquainted with the situation of the people 



402 THE PLACE OF SOVEKEIGNTY. 

Argument of Story in his Commentaries. 

subject to the control of the general government, in order to enable 
it to produce uniformity and prevent its own dissolution.' — 3 Elli- 
ott's Debates, 367. And, in the Federalist, Hamilton said that the 
propriety of the clause in question rested ' upon the evidence of the 
plain proposition that every government should contain in itself 
the means of its own preservation.' " — lb. 416. 

But this is precisely the assumption upon which the ma- 
jority of the court has, in these cases, rested their construc- 
tion of the grant in the constitutional provision. Judge 
Story, who, as has been shown, relies on the same assump- 
tion, also refers to these same authorities. 1 

" Nothing can be more evident," says Story (Coram., 
§ 817), " than that an exclusive power in the State legisla- 
tures to regulate elections for the national Government 
would leave the existence of the Union entirely at their 
mercy. They could at any time annihilate it by neglect- 
ing to provide for the choice of persons to administer its • 
affairs. . . . The Constitution ought to be safe from risks of 
this sort and against the temptation to undertake such a 
project." And, therefore, — is the argument of Judge 
Story, in the character of commentator, — the persons who 

1 Compare ante, p. 395, note. Madison and Hamilton, probably, conceived 
of an actual division of sovereignty between the States as separate political 
personalities, on the one hand, and a political somebody called "the United 
States," who, in possessing its share of sovereignty, was as distinct from the 
States as one sovereign country is from every other. They thought of the 
"United States as one person, and of the States as so many others. Madison 
may have conceived of the States, as United States, holding power by grant 
from themselves separately. (Compare ante, p. 102, IV.) Hamilton, proba- 
bly, thought that this grantee of power called " the United States " could 
only be a government, composed of persons holding executive, legislative, 
and judicial power as provided in the Constitution, and regarded this gov- 
ernment as possessing a portion of all sovereignty by right above law. 
(Compare ib. V.) Story's theory (compare ante, 108, IX.) ignored the States 
as possessing independent political existence, and presented them in their 
united and separate relations as subordinate governments under a self-existent 
law contained in the written Constitution, the ultimate object of which was 
to keep up a general Government, and which was to be enforced by that 
government against the State governments in order to sustain its own 
existence. 






THEORY OF OUR NATIONAL EXISTENCE. 403 

Question of a Political Change. 

may at any one time have been chosen to administer the 
affairs of this " union " must have had the power given to 
them to provide for their successors in office. It may be 
asked, Suppose the case that the State governments had 
never acted in the first instance, where would this " na- 
tional Government " have been to maintain its own exist- 
ence as a government? Would Story's fetish constitution 
have made an executive, congress and judiciary, by its 
own force ? * 

Each State legislature must have been responsible to the 
political people of the State. But if the political peoples 
of the States did not choose to exercise their political power 
by the elective franchise, which, even when exercised for 
the purpose of keeping the general Government in exist- 
ence, was a right dependent on the will of each several 
State, that government must have expired by its own lim- 
itations under the Constitution. Whether the State or 
States which so refused to exercise their political functions 
for maintaining the general Government would still be 
States of the union, or would lapse into territories under 
the exclusive jurisdiction of the States in union and 
maintaining the general Government, would have been a 
political question, not capable of settlement under the 
Constitution as law, and therefore not by the judicial 
functions of the general Government. 2 . 

That had been the political truth, on the supposition 
that, before the war, the States in union were the United 
States. But Judge Story's sagacity ma} r have prepared a 
commentary to be justified in the future, by political revo- 
lution, which may now have been realized. 

It depends entirely upon some political " prepossession " 
whether the title which this legislation has borne in the 
original enactment and in the Revised Statuses, 3 is not 
itself the assertion of a revolutionary change, or else, in 

1 Compare ante, p. 306. '>■ Compare ante, p. 282. » Ante, pp. 385, 386. 



404 THE PLACE OF SOVEREIGNTY. ' 

Political Basis of the Elective Franchise. 

view of the written Constitution as law, equivalent to a 
begging the whole question. As the public law of this 
country had been before this legislation, it was solely as a 
citizen of a State, and from the exercise of the so-called 
"reserved" powers of a State, that any inhabitant of the 
United States had any " elective franchise." The word 
" citizen " was a "word having two well-known, but distinct, 
meanings. So far as it signified a person holding that po- 
litical right, or franchise, that sense was not included in 
the meaning of the term " citizen of the United States," 
whatever may have been the idea attached to that term. 
But that sense may or may not have been included in 
the meaning of the term " citizen of one of the States." 
The right to vote, even for President and members of 
Congress, belonged to any citizen only as he might be the 
citizen of one of the States. 

For corroboration, if necessary, of this I refer to Mr. 
Pomeroy, as one of the most pronounced adherents of the 
theory that the Constitution rests on sovereignty held by 
the nation as a mass ; 1 that the general government alone 
represents such nation, and that this inability of this gov- 
ernment to create the electoral body, upon which its own 
continuance depends, is " an anomaly." 

In § 207 of his " Introduction," etc., 2 Mr. Pomeroy 
says : — 

" Here we perceive that the general government has no voice in 
deciding who shall be privileged to vote for Representatives in Con- 
gress. The whole subject is controlled by State laws." 

And in § 208, — 

1 Ante, p. 114. 

2 The citations are from the fourth edition, published 1879, the preface 
being that to the third, dated August, 1875. The author treats the subject 
at some length, §§ 205-216. That he has made no alteration of his text in 
consequence of the Fourteenth and Fifteenth Amendments appears from 
(Appendix) § 761, of the fourth edition. 






THEORY OF OUR NATIONAL EXISTENCE. 405 

Political Basis of the Elective Franchise. 

" This fact is a complete answer to the somewhat common notion 
that United States citizenship implies the right of voting. Nothing 
can be further from the truth. Not a vote is cast, from one end of 
the country to the other, by any person in virtue merely of his 
being a citizen of the United States." x 

One may appeal to an author in the character of a jurist 
and expositor of constitutional law as it is, without being 
obliged to defer to his opinions as political philosopher, or 
guide as to what the constitutional law ought to be. In 
the course of his discussion of this subject Mr. Ponaeroy 
says, § 211, — 

" It is certainly, however, an anomaly that the general govern- 
ment of the United States should have no control over the choice 
of its own delegates in Congress ; that it should be powerless to 
define the qualifications of congressional electors. It must be 
conceded that this is a defect in our organic law which needs 
amendment ; it was an unnecessary and unfortunate concession to 
the theory of state sovereignty and independence. One code of 
rules should certainly prevail throughout the country to regulate 
the choice of representatives, and this should be the work of Con- 
gress, or of the people in its sovereign capacity. The nation should 
dictate in the selection of its own legislators. The integrity of the 
separate States is sufficiently guarded by allowing to each an equal 
voice in the Senate, and by permitting them to appoint Senators 
and to control the selection of Presidential electors ; the more 
national branch of Congress, that which comes directly from the 

1 Mr. Pomeroy's note to § 209 is of special interest, as giving some indi- 
cation of the author's conception of the theory of the Reconstruction 
measures. Referring to the exclusive power of the States over the elective 
franchise, he says, " I need hardly say that I am speaking here of those 
States alone which remained true to the Union, and which have voluntarily 
acted upon the question of suffrage. I do not include those States which 
attempted to secede, and upon which Congress is now imposing universal 
suffrage." He might have added, While Congress is at the same time 
" imposing " on them the exercise of their power, as States, to adopt Amend- 
ments binding on all the States. (Ante, p. 256, n.) As to State continuance, 
Mr. Pomeroy, in (Appendix) § 762, declares his agreement with Chief Justice 
Chase's doctrine, whatever that was, in Texas v. White. Ante, p. 9. 



406 THE PLACE OF SOVEREIGNTY. 

Political Basis of the Elective Franchise. 

people, should be entirely under the management of the one body 
politic which is represented in the general government." * 

As I understand the word anomaly, it cannot be applied 
to a fundamental fact, or to a condition in the existence of 
anything which would not exist at all, if such fact or con- 
dition did not exist. A naturalist may think it " unfortu- 
nate and unnecessary" that the animals called quadrupeds 
have four legs, instead of having five or three, or that a 
dog wags his tail, instead of the tail's wagging the dog ; 
but, as natural philosopher, he would hardly call these 
" anomalies." That Mr. Pomeroy, as Judge Story had 
found before him, 2 should find this fact in the political 
existence of the republic a very inconvenient one for his 
a priori theory of " a nation," is natural ; but that does 
not make it " an anomaly." The fact is merely one in a 
connected array of facts which shows that sovereignty 
never has been held by the nation or people, as a mass, as 
Mr. Pomeroy and Judge Story assumed. The whole Con- 
stitution may be called " an anomaly " in view of the same 
theory. 3 

Whoever professes to expound a constitution, as jurist, 
should expound it as matter of existing fact, whether he 
likes the fact or not. As citizen, he may do what he can 
to change it, by argument ; or by force, if he prefers; tak- 
ing the responsibility, as John Brown did, with his musket 
at his shoulder. 

If there are such persons as " delegates in Congress," 

1 Compare ante, pp. 840-345, as to consequences of a supposed revolu- 
tionary change. 

2 See ante, p. 402. 

3 By the same theory, as presented by Falck, through Mr. Pomeroy 
(ante, p. 114, n.), all the governments that ever existed, or that can exist, 
were and will be anomalies. Mr. Bateman, in treating this subject very 
clearly and fully, as a question of revolutionary change, in his work on the 
Political and Constitutional Law, etc., on p. 250, has given special atten- 
tion to Mr. Pomeroy's logic in this instance. 



THEORY OF OUR NATIONAL EXISTENCE. 407 

Political Basis of the Elective Franchise. 

they are certainly not delegates of Congress ; not delegates 
of the body which, as delegates, they compose ; much 
less can they be delegates of the government of which, as 
such body, they form a part. The author's theory blinds 
his perception of the fact that the provision which he calls 
" an unnecessary and unfortunate concession to the theory 
of state sovereignty and independence " could not be such a 
concession : simply because its existence as part of the Con- 
stitution depended on the will of those persons who held 
such " state sovereignty and independence," as the political 
peoples of States in Union ; and that, if such persons had 
not chosen so to act, there would have been no " conces- 
sion " and no constitution. 1 

The nation has always had "the choice of its own 
legislators." Because, except as there were States in 
union, to hold all the power of legislation that could be 
held, there was no nation. The House of Representatives 
is no more national than the Senate, or the President, or 
the judiciary ; and all together, as the general Government, 
are no more national than the State governments, because 
all are equally necessary to a national existence. 

Even the new Amendments have not changed this. If, 
merely in consequence of these Amendments, there is now 
a citizenship of the United States in a new sense of the 
term, the right to vote is not a characteristic of such citi- 
zenship. 2 

But the argument, in the opinion of the court in these 
Election cases, is founded on the assumption that, in vot- 

1 These fundamental facts were what Story was obliged to reconcile him- 
self to, as "matters of regret, and dictated by a controlling moral or political 
necessity." Ante, p. 396, n. In the professor's argument, as in that of Story 
and so many other jurists, the Constitution is imagined as the cause of its 
own existence and continuance. Compare ante, p. 95. 

2 Probably there are some who have a different opinion on this point. 
For illustration, compare an article by Senator George F. Edmunds in North 
Am. Rev. for January, 1881, p. 26. Also ante, p. 246. 



408 THE PLACE OF SOVEREIGNTY. 

Political Basis of the Reconstruction Measures. 

ing for persons to make any representative government, the 
citizen exercises a power winch that government must have 
a right to protect as if it were a right derived from that 
government. 

This was one among the confused mixture of ideas 
brought out to support the Reconstruction measures, when 
" lo}'al " citizens, that is, citizens who were opposed to the 
secession of their own State, were to be discriminated as 
the proper constituents of the State, and, as such, to be 
maintained by the general Government in the exercise of 
the elective franchise for the benefit of such Government. 1 

In its historical associations, this legislation relative to 
the exercise of the elective franchise is part of the Recon- 
struction measures, and the construction of the constitu- 
tional provision by the court in these cases is founded on 
the same general theory upon which the whole Recon- 
struction policy of the Government was based : that is, 
that the Government, by the necessity of maintaining itself 
as a sovereign, must have the power to treat States in the 
Union as owing duties to itself, and that the fulfilment of 
such duties can at any time be enforced by the general 
Government, by its direct action upon the political people 
of the State. 

The larger portion of the Reconstruction legislation has 
been popularly regarded as directed only to the circum- 
stances of seceding and belligerent slave-holding States. 
But this part of that legislation, and the opinions of the 
Supreme Court in these cases, disclose the fact that the 
power exercised in those measures, if it existed, still exists, 
and exists without any reference to the previous political 
action of a State, and that the power to compel States in 
the Union to continue the existence of the general Govern- 
ment is logically and consistently regarded as one to be 

1 Ante, p. 252. 



THEORY OF OUR NATIONAL EXISTENCE. 409 

Effect of a supposed Change. 

employed at the discretion of the general Government 
against any and every State. 

I have here noticed Mr. Porneroy's development of his 
own political theory, in connection with the decisions of 
the Supreme Court in the Maryland and Ohio Election 
cases, because, taken together, they show the difference in 
political importance between all delegation of power to Con- 
gress (either in the original Constitution or an Amendment) 
over the private relations of the inhabitants of the coun- 
try, including even those of personal status, and any which 
transfer to the general Government the power of deter- 
mining the citizens who shall have the elective franchise. 

While the States, severally, retain the power of deter- 
mining their own existence as a political people, there may 
be States in union, acting by and through the general Gov- 
ernment, as their agent, and the republic may rightly be 
called " the United States," though Congress may still 
exercise more and more of their powers. 

But whenever the existing " anomaly," as Mr. Pomeroy 
calls it, is removed, and the general Government determines 
its own continuance, irrespectively of the will of the States 
in union, as the Supreme Court, substantially, claims it is 
its right to do, even now, the States, as political bodies, 
holding supreme power in union, will have ceased to exist, 
and have become municipal corporations, under a law, 
written more or less clearly in the Constitution, but de- 
pendent for authority on the will of the general or 
" national " Government. 

The powers which the corporations, then called " States," 
will retain will not be sovereign powers ; because all self- 
maintaining political existence will belong to a " National " 
government: and division of sovereignty is impossible. 1 

1 It has been said of the English, " They have a form of government, but 
no constitution." When this change takes place, the same may be said of 
Americans. Congress will, essentially, be in the same position as is the 
Parliament. 



410 THE PLACE OF SOVEREIGNTY. 

Tennessee v. Davis. 

Of the same class of cases, that is, cases presenting new 
claims of power for the general Government as against the 
States, not founded on the new Amendments, 1 is the case 
of Tennessee v. Davis, 10 Otto, 257, decided by the Su- 
preme Court, with the cases last cited, at the October Term, 
1879. This case arose on the provisions of Sect. 643 of 
the Revised Statutes of the United States, which declare 
that — 

" When any civil suit or criminal prosecution is commenced in 
any court of a State against any officer appointed under or acting 
by authority of any revenue law of the United States, now or 
hereafter enacted, or against any person acting under or by au- 
thority of such officer, on account of any act done under color of 
his office or of any such law, or on account of any right, title, or 
authority, claimed by such officer or other person under any such 
law, 2 . . . the said suit or prosecution may, at any time before the 
trial or final hearing thereof, be removed for trial into the Circuit 
Court next to be holden in the district "Where the same is pending 
upon the petition of such defendant to said Circuit Court." 3 

In this case, the defendant, having been indicted in the 
State Court for murder, presented his petition to the United 
States Circuit Court for removal of the case, under this 
provision, into that court, alleging that the killing charged 
as murder was an act of self-defence, he being at the time 

1 Ante, p. 870. 

2 These clauses are taken from the Act of March 2, 1833, c. 57, sect 8: 
4 U. S. Statutes, 633. The history of this Act, passed during President 
Jackson's administration, is given in the opinion of the court, 10 Otto, 268. 

3 This extract from the statute is as given in the caption of the report. 
The passages omitted are — "or is commenced against any person holding 
property or estate hy title derived from any such officer, and affects the 
validity of any such revenue law [this is from the Act of July, 1866, 
c. 184, sect. 67 ; 14 U. S. Stat. 171] ; or is commenced against any officer of 
the United States or other person on account of any act done under the pro- 
visions of Title XXVI., ' The Elective Franchise/ or on account of any 
right, title, or authority claimed by said officer or other person under any of 
the said provisions." [This is from the Act of 28th February, 1871, c. 09, 
sect. 16; 16 U. S. Stat. 438.1 



THEORY OF OUR NATIONAL EXISTENCE. 411 

Tennessee v. Davis. Opinion of the Court. 

engaged in the discharge of his duties as an officer in the 
United States revenue service. The case had thereupon 
been removed to the Circuit Court for trial of the issue 
raised by the indictment, and was presented in the Su- 
preme Court, on the " certificate of division in opinion 
between the judges of the Circuit Court of the United 
States for the Middle District of Tennessee." 

The court sustained the jurisdiction of the Circuit Court, 
and denied the petition to remand the case to the State 
court. Justices Clifford and Field dissented. 

The opinion of the majority was delivered b}' Mr. Justice 
Strong. Independently of the question of the correctness 
of the judgment itself, this opinion may be considered so 
far as it is an exponent of political doctrine. With this 
object, some of the more striking portions are here noticed, 
with the preliminary admission that, so detached from the 
rest, they may give an insufficient view of the court's 
position. 

After some introductory considerations the court pre- 
sents this as the main question in the case (J6. 262) : — 

" Has the Constitution conferred upon Congress the power to 
authorize the removal from a State court to a Federal court of an 
indictment against a revenue officer for an alleged crime against the 
State, and to order its removal before trial, when it appears that a 
Federal question or a claim to a Federal right is raised in the case, 
and must be decided therein ? " 

Taken in connection with the succeeding portions of the 
opinion, this passage may be understood as intended to lay 
a foundation for the position, asserted afterwards, that 
the question of " guilty or not guilty " in this case was a 
question arising under the Constitution and laws of the 
United States, as distinguished from a question under the 
law of a State, and that therefore the case was one within 
the judicial power of the United States. But for this the 



412 THE PLACE OF SOVEREIGNTY. 

Tennessee v. Davis. 

court offers no argument : for the statement of the position 
is no argument, and this statement is contradicted in other 
parts of the opinion, where the issue raised in the case is 
expressly recognized as one to be determined by State 
law. It appears to be assumed by the court, without any 
evidence or allegation to that effect, that the issue, in the 
State court, of guilty or not guilty, would be identical with 
the question, whether the officer was doing a lawful act in 
executing the revenue law. It is evident that the case 
might have been decided in the State courts, on the facts, 
without the slightest question of the validity of the revenue 
laws, or of the powers of the revenue officers under them. 
There was therefore nothing in the case, as it stood, to 
warrant an assertion that " it appears that a Federal ques- 
tion or a claim to a Federal right is raised in the case and 
must be decided." 

Here, at the outset, it is assumed, as it is indeed more 
plainly asserted afterwards, that the general Government 
may, or even should, treat each several State as unfriendly 
or hostile in exercising the powers which indisputably 
belong to it as "reserved " powers ; and, further, that, for 
this reason, the general Government rnay take upon itself 
the judicial determination of any legal relations depend- 
ing on those powers, when the persons who sustain those 
relations are persons having rights and duties under " Fed- 
eral " law. 

The court proceeds to say, — 

" A more important question can hardly be imagined. Upon its 
answer may depend the possibility of the general government's pre- 
serving its own existence. As was said in Martin v. Hunter (1 
Wheat. 363), 'the general government must cease to exist when- 
ever it loses the power of protecting itself in the exercise of its 
constitutional powers.' It can act only through its officers and 
agents, and they must act within the States. If, when thus acting, 
and within the scope of their authority, those officers can be ar- 



THEORY OF OUR NATIONAL EXISTENCE. 413 

Tennessee v. Davis. Opinion of the Court. 

rested and brought to trial in a State court, for an alleged offence 
against the law of the State, yet warranted by the Federal au- 
thority they possess, and if the general government is powerless to 
interfere at once for their protection, — if their protection must be 
left to the action of the State court — the operations of the gen- 
eral government may at any time be arrested at the will of one of 
its members." 1 

In these sentences appears again that political doctrine 
which, taken as axiomatic, has been the foundation of some 
other opinions of the same court, — that the general Gov- 
ernment is a government of that nature that it may or 
must, as a possessor of some sovereign powers, make its 
own existence its end, and employ any means it may think 
essential to that end. The citation from Marshall does not, 
however, support this, because it is therein recognized that, 
except as its powers may be constitutional, that is, intrusted 
to it by the law of a political superior, they are not powers 
of a government. In these sentences of the opinion, it is 
assumed that any power claimed by the Government in pro- 
tecting itself as sovereign is " constitutional " power. \ There- 
fore, the position taken is that the power is not measured 
by the Constitution, but the Constitution is construed by 
the assumed power. 

In these sentences of the opinion, something is again 
taken for granted which had not been shown by any record 
before the court, that is, that the act, the character of 
which the State proposed to judge by its own law, was 
an act warranted by " Federal authority." 

But if this was the ground for asserting the jurisdiction 
of the United States Circuit Court as against the State 
Court, it was absurd for the Circuit Court to proceed to 
try the case as an issue of guilty or not guilty under the 
State law. The Supreme Court had made its decision on 

1 Compare a similar expression in Judge Swayne's opinion in the 
Slaughter House Cases, ante, p. 375. 



414 THE PLACE OE SOVEREIGNTY. 

Tennessee v. Davis. 

the question of removal, on the ground that the act in 
question was justified bj the " Federal law." 
The court proceeds to say, — 

" The legislation of a State may be unfriendly. It may affix 
penalties to acts done under the immediate direction of the national 
government, and in obedience to its laws. It may deny the au- 
thority conferred by those laws. The State Court may administer, 
not only the laws of the State, but equally Federal law, in such 
a manner as to paralyze the operations of the government. And 
even if after trial and final judgment in the State Court the case 
can be brought into the United States Court for review, the officer 
is withdrawn from the discharge of his duty during the pendency 
of the prosecution, and the exercise of acknowledged Federal 
power is arrested." 

Whatever legislation, on the part of a State, was possible 
was either constitutional or unconstitutional. If the latter, 
it was simply void as law. But if so unconstitutional 
and void as law, it could be made so to appear only through 
the decision of cases as they had arisen in the courts, and 
ivere, as cases, subject to the national judiciary. As 
political action, such legislation, so far as the general 
Government was concerned, was simply null ; that is, the 
Government could take no notice of it as being either 
friendly or unfriendly. 

This may have been an "element of weakness" in the 
Constitution, that is, a bad political arrangement. But 
neither the Supreme Court, nor any other branch of the 
general Government, had any right to give itself trouble 
on that account. 

If, on the other hand, the State legislation was constitu- 
tional, it was for the general Government' to keep its hands 
off; and all that the judiciary had to do was so to declare, 
whenever the question should arise in a case at law, what- 
ever might be the consequences. 

The court proceeds to enunciate as political doctrine : — 



THEORY OF OUR NATIONAL EXISTENCE. 415 

Tennessee v. Davis. Opinion of the Court. 

" We do not think such an element of weakness is to be found 
in the Constitution. The United States is a government with au- 
thority extending over the whole territory of the Union, acting upon 
the States and upon the people of the States." x 

Here, as in some other instances, the court allows itself 
to found an argument upon a misuse of words ; that is, a 
use identifying the general Government with those States 
which, in their union, are the sovereign. In doing this it 
arrogates to the persons composing that government the 
character of sovereignty, and denies that character to the 
several States which in union are "the United States." 2 
Whatever may be the record to be left by contemporane- 
ous history, it was a misrepresentation of past history to 
say that this government had had any authority whatever, 
acting upon the States as its subjects. 3 

And in continuing : — 

" While it is limited in the number of its powers, so far as its 
sovereignty extends, it is supreme. No State government can ex- 
clude it from the exercise of any authority conferred upon it by the 
Constitution, obstruct its authorized officers against its will, or with- 
hold from it, for a moment, the cognizance of any subject which 
that instrument has committed to it." 

The passage here cited may seem commonplace enough ; 
but it is itself contradictory to the position taken in the 
preceding sentences; for it is an admission that, like the 
State governments, the .general Government is bound and 
limited by the Constitution, as law proceeding from some 
person or persons who are not identified with either of 
these governments. 

In offering this truism as its solution, the court has here 
again, as once or twice before, simply begged the ques- 

1 See ante, p. 377, n. 2., Waite, Ch. J., in United States v. Cruikshank. 

2 Compare ante, p. 384. 
8 Compare ante, Ch. IV. 



416 THE PLACE OF SOVEREIGNTY. 

Tennessee v. Davis. 

tion, — whether the trial of a charge of murder, under the 
State's law in the case of a revenue officer, is withholding 
from the general Government " the cognizance committed 
to it by the Constitution." It is assumed that the enfor- 
cing of the simplest law of a State, — the law for the pro- 
tection of the life of its inhabitants — is hostile, and in 
conflict with the use of powers granted to the Govern- 
ment by the States in union, so far as it may apply to 
officers of the general Government who may be within its 
territorial jurisdiction. 

If the judiciary proposes only to carry into effect the 
Constitution as law, it is bound, as is every other branch 
of the Government, to take the law as given to it. But in 
this opinion the court virtually denies that the three 
branches of the general Government are under law. This 
it had done already by asserting that they, as a govern- 
ment, and "the United States" are one and the same 
personality, while the States are under a law administered 
by this Government. But the same idea is advanced in 
another part of the opinion, in which the court has pro- 
duced an original conception at least, if it cannot, by the 
nature of things, be a discovery, by making the supremacy 
of the law, that is, of the author of the law, the supremacy 
of the agent. 

After stating, ib. 263-265, its view of the extent of the 
judicial power, the court says, p. 265 : — 

" As we have already said, such a jurisdiction is necessary for the 
preservation of the acknowledged powers of the government. It is 
also essential to a uniform and consistent administration of the na- 
tional laws. It is required for the preservation of that su- 
premacy which the Constitution gives to the general Government 
by declaring that the ' Constitution and laws of the United States 
made in pursuance thereof, and the treaties made or which shall be 
made under the authority of the United States shall be the supreme 
law of the laud, and the judges in every State shall be bound 



THEORY OF OUR NATIONAL EXISTENCE. 417 

Tennessee v. Davis. Opinion of the Court. 

thereby, anything in the Constitution or laws of any State to the 
contrary notwithstanding.' " 

It is not easy to see what force, as argument on the ques- 
tion before it, the court could find in this self-contradictory 
statement, unless it is understood as equivalent to saying 
that the general Government is identical with " the United 
States," that is, with the actual sovereign from whom the 
" Constitution and laws of the United States " proceed, 
and that, therefore, all its powers are original in itself, 
as the supreme law-giver, while all others, that is, those 
held by the States, are held under a law proceeding from 
those powers, the application of which is to be decided by 
the judicial function of this Government. 1 

The court next proposes to drag in " the founders," with 
their intentions, even to justify that petitio principii which 
characterizes this whole opinion : — 

" The founders of the Constitution could never have intended to 
leave to the possibly varying decisions of the State courts what the 
laws of the government it established are, what rights they confer, 
what protection shall be extended to those who execute them. If 
they did, where is the supremacy over those questions vested in the 
government by the Constitution ? If, whenever and wherever a 
case arises under the Constitution and laws or treaties of the 
United States, the national government cannot take control of 
it, whether it be civil or criminal, in any stage of its progress, its 
judicial power is, at least, temporarily silenced, instead of being at 
all times supreme." 

Beyond this surmise as to the intention of " the founders " 
no argument is offered to show that a personal right, such 
as the right of self-defence, of " those who execute the 
laws of the Government," is one conferred by " its laws," 

1 This is an illustration of the consequences which have been described 
(ante, pp. 341-343, 351, 352) as legitimately following from the theory of the 
Constitution's existing by the will of the nation as a mass, if made good by 
revolutionary change. 



418 THE PLACE OF SOVEREIGNTY. 

Tennessee v. Davis. 

or that their " protection " as citizens does not, under 
the Constitution, belong exclusively to the State. The 
contrary is indirectly affirmed by the admission, in the 
close of the opinion, that in the Federal Court the ques- 
tion of criminality must be decided by the State law. 

Throughout this opinion, the court presents the divisi- 
bility of sovereignty as. a fundamental truth: — 

" The argument so much pressed upon us, that it is an invasion 
of the sovereignty of a State to withdraw from its courts into the 
courts of the general Government the trial of prosecutions for 
alleged offences against the criminal laws of a- State, even though 
the defence presents a case arising out of an Act of Congress, 
ignores entirely the dual character of our government. It assumes 
that the States are completely and in all respects sovereign. But 
when the national government was formed, some of the attributes 
of State sovereignty were partially, and others wholly, surrendered, 
and vested in the United States." l 

On page 271, after a review of decisions affirming the 
power to remove cases when a question arises of the 
validity of a right given by a law of Congress, the court 
says, — 

" It ought, therefore, to be considered as settled that the con- 
stitutional powers of Congress to authorize the removal of criminal 
cases for alleged offences against State laws from State Courts to 
the Circuit Courts of the United States, when there arises a Federal 
question in them, is as ample as its power to authorize the removal 
of a civil case." 

The citation of the cases to prove this proposition was 
entirely superfluous. Here, as throughout the opinion, the 
court assumes that the character of the. act charged was 
to be judged by a " Federal " law, that is, a law deriving 

1 Why did not the court say, outright — to the Government ? As shown 
in the fourth chapter {ante, p. 136), the United States were the grantors, so 
far as there were grantors, and not grantees. The idea of a "partial" 
surrender of an attribute of sovereignty is a new development in the theory 
of divisibility of powers. 



THEORY OF OUR NATIONAL EXISTENCE. 419 

Tennessee v. Davis. Opinion of the Court. 

its force from the powers held by the general Government. 
But this was the proposition to be proved. 

And then, on the same page, the court proceeds to con- 
tradict its own position, by asserting that the Circuit 
Court will try the case by the law of the State. 

"The imaginary difficulties and incongruities supposed to be in 
the way of trying in the Circuit Court an indictment for an alleged 
offence against the peace and dignity of a State, if they were real, 
would be for the consideration of Congress. 1 But they are unreal. 
. . . The Circuit Courts of the United States have all the ap- 
pliances which are needed for the trial of any criminal case. They 
adopt and apply the laws of the State in civil cases, and there is no 
more difficulty in administering the State's criminal law. They 
are not foreign courts. 2 The Constitution has made these courts 
within the States to administer the laws of the States in certain 
cases, and so long as they keep within the jurisdiction assigned to 
them, their general powers are adequate to the trial of any case." 

Here, again, it is assumed that the Federal courts are 
within their jurisdiction in such instances, while immedi- 
ately the court reasserts the divisibility of sovereignty, 
and speaks of the powers of the States as " sovereign " : — 

" The supposed anomaly of prosecuting offenders against the 
peace and dignity of a State, in tribunals of the general govern- 
ment, grows entirely out of the division of powers between that 
government aud the government of a State ; that is, a division of 
sovereignty over certain matters. 3 When this is understood (and 
it is time it should be), it will not appear strange that even in cases 
of criminal prosecutions for alleged offences against a State, in 

1 Here is another contradiction. If this difficulty is " real," that is, 
founded on the Constitution, Congress could do nothing about it. 

2 The whole argument had been that the Slates, and especially their 
courts, were to be regarded as foreign and hostile to the general Govern- 
ment. But how can one of two parties be foreign to the other, if this other 
is not equally foreign to the first ? 

3 That is, apparently, that there is a division of sovereignty over one 
and the same subject, or class of relations, in harmony with the expression 
" partial sovereignty." (Ante, p. 418.) 



420 THE PLACE OF SOVEREIGNTY. 

Tennessee v. Davis. Clifford, J., dissenting. 

which arises a defence under United States law, the general gov- 
ernment should take cognizance of the case, and try it in its own 
courts, according to its own forms of proceeding." 

While, in this same opinion, the doctrine of the division 
or partition of sovereignty between the States and the 
general Government is proclaimed, it is almost in the same 
breath declared that any of these powers held by the 
States may at any time be subject, in exercise, to the other 
sovereign powers held by the general Government. If 
this can possibly be " understood," it is time somebody 
should explain. Why should not the court have done this 
service on this occasion, if the court understands it ? 

The dissenting opinion, written by Mr. Justice Clifford, 
occupying pp. 272-301, consists largely of citations from 
earlier decisions. But it was hardly worth so much trouble 
to prove a negative ; considering that the proof of the 
affirmative proposition had fallen to the majority, and that 
their " opinion " exhibited only a logical failure. 

In this dissenting opinion (ib. 281) it is said : — 

" Neither the Constitution nor the Acts of Congress give a 
revenue officer or any other officer of the United States an immunity 
to commit murder in a State, or prohibit the State from executing 
its laws for the punishment of the offender. Unquestionable ju- 
risdiction to try and punish offenders against the authority of the 
United States is conferred upon the circuit and district courts, 
but the acts of Congress give these courts no jurisdiction whatever 
of offences committed against the authority of a State. Criminal 
homicide, committed in a State, is an offence against the authority 
of the State. . . . Matters of fact are not in dispute. . . . Nobody 
before ever pretended that such an offence ever was or could be 
defined by an act of Congress as an offence against the Federal 
authority, — that the Circuit Court or any other Federal Court has 
or ever had any jurisdiction of such a case to try or sentence such 
an offender for such an offence." 

Before the era of Reconstruction, it had been the will 
of the sovereign (i.e. of the States united), under whom 



THEORY OF OUR NATIONAL EXISTENCE. 421 

The political Question involved. 

all law existed in tliis country, that, in each State, the citi- 
zen should, in some relations, be bound by and receive 
protection from law proceeding from powers intrusted 
[" reserved "] to each State separately, and, in other rela- 
tions, be bound by and receive protection from a law pro- 
ceeding from powers intrusted [delegated] to a general 
Government. 

The laws proceeding from the holder of either set of 
powers might be so framed, or, however framed, so admin- 
istered, intentionally or unintentionally, as to work a failure 
of justice in relations dependent on those powers. 

The persons who might suffer from such a failure of 
justice, in relations depending on one of these sets of 
powers, might be persons sustaining relations depending 
on the other set of powers. 

The will of the sovereign, however, had been that the 
holders of these two sets of powers should be reciprocally 
independent in their use of these powers. The holder of 
neither set of powers had any right to interfere with the 
framing or the administration of the laws dependent on 
the action of the holder of the other powers. 

Whether this was a good political arrangement, or not, 
was not a question for anybody but the sovereign to con- 
sider. For any one else, it was a speculative question ; or 
was a practical question only as attempted revolution 
might make it so. 

Sovereignty was distributed in exercise ; it was not 
divided in possession. 1 

It was the same sovereign who held the powers " re- 
served" to the States separately, to be exercised by their 
governments, and the powers delegated to the general Gov- 
ernment. 

Hence, the latter could have no right to distrust the 

1 Ante, p. 139. 



422 THE PLACE OF SOVEREIGNTY. 

The political Doctrine involved. 

State governments, as holders of power, much less have 
any " supremacy " over them. 1 

The citizen, under the laws of the State government, 
was under the protection and the obligations of laws 
derived from the only sovereign — the States united — as 
essentially as when under the laws of the general Gov- 
ernment. 

This was the fundamental fact ; and the general Gov- 
ernment had to accept the position in regard to each State 
government as long as the State was a member of the 
Union. 

What consequences to a State would follow from a 
misuse of the powers " reserved " to it as a State of the 
Union, or what use should be considered a use inconsistent 
with its existence as a State of the United States, was a 
political question, which could not be decided by the exer- 
cise of any function of the general Government, as organ- 
ized under the Constitution. 2 

This purely political question could be decided only by 
the sovereign, the person or persons holding sovereignty 
as a unit by right above law ; that is, by the States, deter- 
mining for themselves their own identity in union, mu- 
tually recognizing one another. 3 The general Government, 
as holder of delegated powers, could not, by its ordinary 
action under the Constitution, decide this question. 4 Its 

1 If either the general Government or the States could claim "su- 
premacy " over the other, it would be strange that it should be that one 
which not only professed to be governed by a written law prescribed by the 
other, as a union, but which had no independent personal existence, being 
constantly dependent on the renewing action of that other. 

2 Unless, perhaps, a "political department " has been developed. Comp. 
ante, pp. 19, 65. 

3 As the original Thirteen had determined the question at the first. 
Ante, p. 283, n. 

* In the case occurring in 1861, eleven States had so completely settled 
this by withdrawing their Senators and Representatives, to say nothing of 
other action, that, though the theory and its consequences were not then dis- 



THEORY OF OUR NATIONAL EXISTENCE. 423 

The political Doctrine tested. 

action would commence when the political question had 
been decided against the continued existence of a State ; 
when it became territory under the sole dominion of the 
(other) States continuing in their union. 1 

In all the cases which have been cited in this essay the 
Supreme Court construes the Constitution with the idea 
that sovereign powers are not so held, as a unit, by the 
States in union, and distributed to the State governments 
and a general government, but are divided ; some, as sov- 
ereign powers, belonging to a general government (or a 
supposed " United States " or " Union "), 2 and others as 
sovereign powers also, belonging to the States severally. 

According to the theory of our national existence main- 
tained in this essay, there neither was nor could be, in the 
nature of things, a division of the powers of sovereignty, 
either between the State governments and the general 
Government, or between the United States (*'. e., the 
States united) and the States severally. All sovereignty 
was held, as a unit, by the States in union, — the United 
States. 9 

The essential importance of the distinction between 
such a distribution of sovereign powers, and a division of 
sovereignty (even in theory), appears in the arguments of 
the Supreme Court, in the cases cited in this chapter, for 
giving the possessor of one set of sovereign powers (the 
general Government, or a supposed " United States," or 
" Union ") the right to control the administration of laws 

cernerl, the practical course taken was the same as if the other States, in 
convention, had formally declared that they only were the United States. 

If the theory advanced in the Election Cases, ante, p. 385, that senators 
and members of the House are elected as members of a " National " govern- 
ment through suffrages controlled by the same government, is correct, it 
would seem to follow that the senators and representatives from the eleven 
States might have remained in the exercise of their functions until their 
terms had expired, even while the States from which they had been elected 
were declared belligerent States as against the government of which they 
were a part. 

* Ante, p. 145. 2 Ante, p. 102. 3 Ante, p. 140. 



424 THE PLACE OE SOVEEEIGNTY. 

The Position of the Court in these Cases. 

proceeding from trie possessors of the other set of powers, 
— also, by the theory, sovereign powers, — the States. 

Although it is evident that the argument, from the 
nature of sovereignty, applies just as much in favor of the 
powers held by the States, if they are sovereign powers, 
as in favor of those held by the general Government, it is in 
the cases here referred to assumed as a doctrine of constitu- 
tional law that the latter, in view of its own existence as 
sovereign, must assert the relations existing under its 
powers at the expense of every other possessor of powers 
equally sovereign, whenever the relations under each in- 
volve the same persons. 1 

The political doctrine declared by the court in justify- 
ing its decision in this case, Tennessee v. Davis, — that the 
general Government, as a superior, may, through laws of 
Congress, always interfere to prevent the administration of 
State laws by State Courts, in view of possible conse- 
quences to persons in the employ of the general Govern- 
ment, and of possible loss of their services, had no support 
in the history of this country before the Reconstruction 
era. 2 

Whatever else may be thought of the decision of the 

1 The toleration which this assumption has received is measurably ascrib 
able to a popular idea that those attributes of sovereign rule which create 
legal relations over a wider expanse of territory, and such as are recognized 
in international transactions, are grander, more majestic, and more essentially 
sovereign than those which create such legal relations as exist in all 
communities, great or small, involving rights and obligations in respect to 
life, liberty, and property. An illustration of this may, I think, be found 
in Mr. Justice Bradley's argument for the supremacy of a "national" gov- 
ernment in the Legal Tender Cases, 12 Wall. 555. (See post, p. 482.) 

2 If the personal rights to life, liberty, and property of officers of the 
general government are to rest upon laws enforceable as if they derived 
their authority from the "Federal" or "National" government, there is 
now an introduction, for the first time, into American jurisprudence of laws 
of personal extent, as opposed to laws of territorial extent, — a system which 
characterized Europe during the Middle Ages, and is now exemplified in the 
extra-territorial jurisdiction over foreigners of European race which is still 
maintained in Japan, China, etc 



THEORY OF OUR NATIONAL EXISTENCE. 425 

No Revolution yet recognized by the Judiciary. 

court in this case, it, like others hereinbefore cited, 1 
proves experimentally the futility of the theory of a 
division of sovereignty. In this Opinion the theory is 
asserted, and " supremacy " at the same time claimed, for 
one of the supposed holders of sovereign power over the 
other in the exercise of his share of sovereign power. 

From the opinions delivered in the cases cited in this 
chapter and others, also relating to the powers claimed by 
the general Government, some passages might be selected 
for notice in a political essay as making for that govern- 
ment those claims which I have pointed out as indicia of 
that theory which makes it the representative of the nation 
as a mass, instead of being the representative of the States 
united. 2 

But, without professing to have made an exhaustive 
examination of all the opinions bearing on our public law 
in the cases reported in the Supreme Court during the 
period in question, I think it is safe to say that, whatever 
inferences as to the future powers of the general Govern- 
ment maybe drawn from the actual judgments of the court 
since the war, taken simply as precedents, or whatever 
expressions as to the position of that government, rela- 
tivel}'' to the States, may be found in the opinions, it will 
appear to any inquirer that no positive discrimination of a 
revolutionary political change has been made by any 
member of the court. 

Even from the language of those justices who have 
gone the furthest in asserting the powers of the general 
Government as against the " reserved " powers of the 
States, it will probably be understood that, whatever poli- 
tical condition the Supreme Court may have accepted as 
the basis of its decision, they have in all their opinions 
stated it as one continuously existing from the time of the 
adoption of the Constitution in 1787. 

l Ante, p. 301. 2 Ante, pp. 341-345. 



426 THE PLACE OF SOVEREIGNTY. 

The Legal Tender Cases. 

This appears not only from their own several references 
to the original formation of the Government, and frequent 
appeals to the views or intentions of " the framers," but 
also from their reliance on earlier judicial opinions, and 
especially on some of Chief Justice Marshall's, as contain- 
ing the political doctrine on which they rely. 

The question presented in the Legal Tender Cases, 12 
Wall. 457, 1 had no immediate connection with the public 
or private relations affected by the three Amendments. 
But the opinions delivered on the rendition of the judg- 
ment may be noticed in their bearing on the question of a 
possible revolutionary change, from the fact that the de- 
cision of the majority sustaining the powers claimed for 
Congress is, in the opinion of the court, and in Mr. Jus- 
tice Bradley's separate opinion, based upon a political 
theory, without any reference to any clauses in the Con- 
stitution itself, as law, determining the powers of the 
general Government. 

It was said in this case by Mr. Justice Strong, deliver- 
ing the opinion of the court (12 Wall. 531), — 

" Nor can it be questioned that when investigating the nature 
and existence of the powers conferred by the Constitution upon 
Congress, it is indispensable to keep in view the objects for which 
those powers were granted. This is a universal rule of construc- 
tion, applied alike to statutes, wills, contracts, and constitutions. If 
the general purpose of the instrument is ascertained, the language 
of its provisions must be construed with reference to that purpose, 
and so as to subserve it. In no other way can the intent of the 
framers be discovered." 2 

1 Decided, December Term, 1870. The opinions given in these cases 
may also be found in Macpherson's Political Handbook for 1874, p. 40. 

2 It may be worth noticing that it is the " intent " or " purpose " of a known 
person that is sought in all instruments. There is no such thing as the intent 
of an instrument, of which we speak only figuratively. In ordinary in- 
struments the intending person is always before the mind. The intent 
sought in the Constitution is the purpose of those who make it law to-day. 
The court speaks of it as one might of a testament left by " the framers," 



THEORY OF OUR NATIONAL EXISTENCE. 427 

The Legal Tender Cases. Opinion of the Court. 

" No single power is the ultimate end for which the Constitution 
was adopted. It \_i.e., the single power?] may in a very proper 
sense be treated as a means for the accomplishment of a subordinate 
object ; but that object is itself a means designed for an ulterior 
purpose. Thus the power to levy and collect taxes, to coin money 
and regulate its value, to raise and support armies, or provide for 
and maintain a navy, are all instruments for the paramount object 
which was to establish a government sovereign within its sphere, 
with capability of self-preservation, 1 thereby forming a union more 
perfect than that which existed under the old confederacy." 

After quoting Chief Justice Marshall's language, Mr. 
Justice Strong proceeds to say (ib. 533), — 

" That would appear, then, to be a most unreasonable construc- 
tion of the Constitution which denies to the government created by 
it the right to employ every means, not prohibited, necessary for its 
preservation, and for the fulfilment of its acknowledged duties. Such 
a right, we hold, was given by the last clause of the eighth section of 
its first article. The means or instrumentalities referred to in that 
clause, and authorized, are not enumerated or defined. In the 
nature of things, enumeration and specification were impossible. 
But they were left to the discretion of Congress, subject only to 
restrictions that they be not prohibited, and be necessary and proper 
for carrying into execution the enumerated powers of Congress and 
all other powers vested in the government of the United States, or 
in any department or officer thereof." 

And in the same opinion (ib. 545), — 

as if their individual intentions should operate when they were dead and 
gone; whereas "the framers" had no more authority in its adoption than 
any other citizens. Compare ante, p. 296. 

1 In the opening sentences of this opinion, 12 Wall. 529, this phrase oc- 
curs, — "a power possessed by every independent sovereignty other than 
the United States " : innuendo that the Government and the United States 
are identical. That the United States, i. e., the States in union, possess all 
the powers of any independent sovereignty, was the fact. The question was 
whether they had delegated one of these powers to the government existing 
under their law. These few words give the key to the whole decision, as is 
more clearly shown by Mr. Justice Bradley in his separate opinion, post, 
p. 431. 



423 THE PLACE OF SOVEREIGNTY. 

The Legal Tender Cases. Opinion of the Court. 

" The Constitution was intended to frame a government, as dis- 
tinguished from a league or comjiact ; a government supreme in 
some particulars, over States and people." 

Sentences of this sort may be found in many earlier as 
well as later opinions. To say that the government is not 
a league or compact, as framed by the Constitution, is a 
meaningless truism, unless it is implied that there was 
somebody, and is somebody now, in existence, who, by 
legislating in the Constitution, had placed the States, as 
well as the individual inhabitants of the States, under the 
jurisdiction of the general Government. Who this person 
may have been, or now is, is left to the imagination. Un- 
less such person can be found, however, the Government 
cannot have any authority over States, as such, and they 
remain what they were at the beginning, — possessors, in 
their corporate capacity, of sovereignty in union. 

So far as these expressions convey any consistent mean- 
ing, it is that, by some means or other, a government came 
into existence which was not merely the agent of a pre- 
existing and continuing possessor of sovereign power, but 
a government sovereign in itself, and entitled as such to 
maintain itself against all the world. In this instance, as 
in so many others, earlier and later, no recognition is made 
of an author of the Constitution to whose continuing 
personal existence and continuing will its authority as 
law should be ascribed. Powers are spoken of as " con- 
ferred by the Constitution." There is a recognition that 
the Constitution was " adopted," and that it was " in- 
tended." But who those were who so adopted and so 
intended is not specified, unless by the allusion to " the 
intent of the framers," who, whatever may have been 
their personal merits, had no more authority to give to the 
Constitution as law than the most obscure voter in their 
day. 

This is nothing more than a stale presentation of the 



THEORY OF OUR NATIONAL EXISTENCE. 429 

Marshall, cited in the Opinion of the Court. 

fetish constitution, supposed to operate of itself after hav- 
ing been once set a-going. In its search for the ultimate 
object of the Constitution as a means, the court stopped 
on reaching the Government. But the next question was, 
What was the object for creating that Government in the 
minds of those now living persons, whoever they may be, 
who to-day give to that Constitution all its authority ? 1 

The decision of this question of historical fact is beyond 
the power of any court of law whatever. Therefore, it 
does not give any argumentative force to such solutions of 
the political question to cite statements, equally weak and 
meaningless, which had been made by an earlier judge ; 
even though that judge was the great lawyer and univer- 
sally honored citizen, John Marshall. 

After saying in the same opinion (ib. p. 533), " It was 
certainly intended to confer upon the Government the 
power of self-preservation," 2 Mr. Justice Strong cites 
the language of Marshall, Ch. J., in Cohens v. The Bank 
of Virginia, 6 Wheat. 414. 3 

" America has chosen to be in many respects and to many pur- 
poses a nation, and for all these purposes her government is corn- 

1 Ante, p. 296. 

2 The question is, What was the " self " that was to be preserved ? A 
government which is an agent can have no right of seZ/^preservation inde- 
pendently of the pre-existence of its principals. 

3 In this place Judge Marshall had said, "That the United States form, 
for many and most important purposes, a single nation has not yet been 
denied. [In this essay it is held that they form a single nation for all pur- 
poses.] In war we are one people. [How would the judge have explained 
the legislation founded on belligerency and conquest in civil war ? ante, 
p. 175.] In making peace we are one people. [Or explained the recon- 
struction measures ?] In all commercial regulations we are one and the same 
people. [Or the Slaughter House Cases?] In many other respects the 
American people are one, [One people 1 In what sense f] and the govern- 
ment which alone is capable of controlling and managing their interests in 
all these respects is the government of the Union. [In what sense of 
'Union'? of agent for the United States or of government acting on the 
States "?] It is their government, and in that sense they have no other. [To 
whom do ' their ' and ' they ' relate ? To the States united, or ' the peo- 
ple ' ? ] America has," etc., as above. 



430 THE PLACE OF SOVEREIGNTY. 

Marshall, Ch. J., cited in the Supreme Court. 

plete ; for all these objects it is supreme. It can, then, in affecting 
these objects, legitimately control all individuals or governments 
within the American territory." x 

In a case where trie essence of the decision was the dis- 
crimination of living political organisms, it was puerile 
rhetoric to use a term like " America," which has never 
had a political use. The question occurs, How can there 
be a nation which is a nation only for some purposes, and 
not for all ? It was the States in their voluntary union 
which chose to be a nation for all purposes ; and for this 
they had, as matter of fact, controlled all individuals, 
and all governments within their geographical American 
territory, including the general Government. 

Mr. Justice Strong proceeds to cite further from Judge 
Marshall in the same case (6 Wheat. 887), as follows: — 

" A constitution is framed for ages to come, and is designed to 
approach immortality as nearly as mortality can approach it. Its 
course cannot always be tranquil. It is exposed to storms and 
tempest, and its framers must have been unwise statesmen, indeed, 
if they have not provided it, as far as its nature will permit, with 
the means of self-preservation from the perils it is sure to en- 
counter." 

" As far as its nature will permit " is an unfortunate qual- 
ification in a theory which elevates constitutions into the 
rank of sentient existences. The honored Chief Justice, 
in this deification of constitutions, had an advantage over 

1 Judge Marshall here adds, " The Constitution and laws of a State, so 
far as they are repugnant to the Constitution and laws of the United States, 
are absolutely void. [There was no dispute about this.] These States are 
constituent parts of the United States. They are members of one great 
empire, [They were the United States, and they and ' the empire ' were 
identical] for some purposes sovereign, for some purposes subordinate." 
[To whom ?] They had in union laid down a law which was binding on the 
State governments and on the general Government ; giving the judicial de- 
partment of the latter the authority to apply this law in cases at law. But in 
this respect the general Government was as subordinate as were the State 
governments. 



THEORY OF OUR NATIONAL EXISTENCE. 431 

The Legal Tender Cases. Opinion by Bradley, J. 

his brethren of a later time, by living nearer to that gen- 
eration over whom the French theories of the eighteenth 
century had such a power as to allow their belief in the pos- 
sibility of such things. 1 But the court of our day, in the 
very act of quoting these words of its great predecessor, has 
had the sagacity to put living men in the place which he had 
ascribed to a piece of parchment. Even though it be also 
an assumption in this instance, this is an assumption more 
in accordance with the nature of things. It is " the Gov- 
ernment " which, in the court's opinion, now appears as 
the self-existent being. 

The language of Mr. Justice Bradley, in a separate 
opinion sustaining the decision of the majority, is still 
stronger than that in the opinion delivered by Mr. Justice 
Strong, for the Court, in relying on the political theory 
of a government supreme and self-supporting in its nature. 

Judge Bradley remarked (12 Wall. 554), — 

" The Constitution of the United States established a govern- 
ment, and not a league, compact, or partnership. It was constituted 
by the people. It is called a government. 2 In the eighth section 
of Article I. it is declared that Congress shall have power to make 
all laws which shall be necessary and proper for carrying into ex- 
ecution the foregoing powers, vested by this Constitution in the 
Government of the United States, or in any department or office 
thereof. As a government it was invested with all the attributes of 
sovereignty. It is expressly declared in Article VI. that the Con- 
stitution and the laws of the United States, made in pursuance thereof, 

1 Ante, p. 315. In this same case, 6 Wheat. 381, Judge Marshall said, 
" This is the authoritative language of the American people ; and, if gentle- 
men please, of the American States." This passage exhibits the ultimate 
weak point of that school which may have been founded on this opinion. 
A fuel is identified with an hypothesis, though the fact and the hypothesis 
contradict each other. Marshall could not help seeing that all law was trace- 
able to the States in union, as fact ; and yet here found a law to act on the 
States as " subordinate," proceeding from the people, as law-giver by hy- 
pothesis. Compare notes on pp. Ill, 114. 

2 Compare Mr. Webster's " It is called a constitution." Ante, 96 n. 



432 THE PLACE OE SOVEREIGNTY. 

Bradley, J., in the Legal Tender Cases. 

and all treaties made under the authority of the United States, shall 
be the supreme law of the land. 1 

" The doctrine so long contended for " 2 . . . 

" The UnitedStates is not only a government, but it is a national 
government, and the only government in this country that has the 
character of nationality. It is vested with power over all the 
foreign relations of the country, war, — peace, and the negotiations 
and intercourse with other nations, all of which are forbidden to 
the State governments. It has jurisdiction over all those general 
subjects of legislation and sovereignty which affect the interests of 
the whole people equally and alike, and which require uniformity of 
regulations and laws, such as 3 . . . 

" Such being the character of the General government, it seems 
to be a self-evident proposition that it is invested with all those in- 
herent and implied powers which, at the time of adopting the Con- 
stitution, were generally considered to belong to every government 
as such, and as being essential to the exercise of its functions. 4 If 
this proposition be not true it certainly is true that the government of 
the United States has express authority, in the clause last quoted, 
to make all such laws (usually regarded as inherent and implied) 
as may be necessary and proper for carrying on the government as 
constituted and vindicating its authority and existence." 

A plainer statement of the political doctrine by "which 

1 Compare Mr. Justice StroDg's argument from these words in Tennessee. 
Davis, ante, 416. 

2 The remainder of this paragraph from the opinion has already been 
cited, ante, p. 89, n. 2. 

3 Judge Bradley proceeds to describe these, and in doing this says (ib. 556), 
" And the Government is clothed with power to guarantee to every State a 
republican form of government, and to protect each of them against invasion 
and domestic violence." I think it is not mere verbal criticism to notice 
this novel presentation of the guaranty given by " the United States," in 
sect. 4 of Art. IV. (ante, p. 214, n.), as illustrating an existing tendency to 
ignore the political sovereign from which the Constitution proceeds, and the 
fact that the general Government is only an agent, and to substitute it as the 
only supreme power holder, which gives or withholds republican government 
at its pleasure. Compare ante, p 342. 

4 If it has all the functions of any government it is superfluous to say 
that it has all the powers necessary for those functions. If its functions are 
limited, they must be so by some law. That law must have an author, or 
source. But if the government exists under such a law, it has not any of 
the attributes of sovereignty. 



THEORY OF OUR NATIONAL EXISTENCE. 433 

The Legal Tender Cases. Mr. Justice Bradley. 

this and later cases in the Supreme Court have been de- 
cided could not be desired, and the judge's fellow-citizens 
owe a debt of gratitude for such an outspoken utterance 
from the bench. As to the argument, the only possible 
answer would be that the general Government had not 
the character here described before 1861, and nobody had 
shown that it had acquired that character afterwards. 
Judge Bradley, in continuing, says, — 

" Another proposition equally clear is that, at the time the Con- 
stitution was adopted, it had for a long time been the practice of 
most, if not all civilized governments, to employ the public credit 
as a means of anticipating the national revenues for the purpose of 
enabling them to exercise their governmental functions, and to meet 
the various exigencies to which all nations are subject/' 

Here again the assumed parity of the general Govern- 
ment, under the Constitution as law, with any or all gov- 
ernments holding sovereignty by right above law, is the 
foundation of the argument, which is developed in a his- 
torical review of the political economy of the subject. 
{lb. pp. 556-570.) 

In the course of this (ib. p. 561), Judge Bradley intro- 
duces a proposition which, of itself, would settle every- 
thing, — 

" The legislative department being the nation itself." a 

With this for a fundamental fact, the written Constitu- 
tion would appear quasi obsolete, and the future labors of 
the Supreme Court proportionately abbreviated. 

Judge Bradley in the same place remarks, — 

1 In the House of Representatives, Jan. 3, 1867, in the debate on House 
Bill No. 543 (ante, p. 221, n.), Mr. Thaddeus Stevens said, " In this country 
the whole sovereignty rests with the people, and is exercised through their 
representatives in Congress assembled. The legislative power is the sole 
guardian of that sovereignty. No other branch of the government, no 
other department, no other officer of the government, possesses one single 
particle of the sovereignty of the nation." Cong. Globe, 2d Sess. 39th Cong., 
p. 252. 



434 THE PLACE OF SOVEREIGNTY. 

Chase, Ch. J., dissenting in the Legal Tender Cases. 

" The interests of every citizen are bound up with the fate of 
the government. None can claim exemption. If they cannot 
trust their government in its time of trial, they are not worthy to 
be its citizens." 

Citizens, here, were not citizens of the Government, and 
the interest of citizens of the United States was not in the 
fate of the Government, as such ; but only as its " trial " 
might involve the fate of their sovereign, from whom it 
derived all that made it a government. That sovereign 
was the States then remaining in a voluntas union. The 
Government was on trial ; because it was questionable 
whether, as constituted, it was an adequate instrument 
for the needs of the sovereign at such a crisis. But if it 
took powers not belonging to it, as constituted, — because 
it was not able to answer those needs, otherwise, — then 
its trial proved it to be a failure. 1 

The position taken in these cases by the court was de- 
scribed in its political bearing by Chief Justice Chase, in 
his dissenting opinion (12 Wall. 582) : — 

" It is unnecessary to say that we reject wholly the doctrine ad- 
vanced for the first time, we believe, in this court by the present 
majority, that the legislature has any powers under the Constitution 
which grow out of the aggregate of powers conferred upon the 
government or out of the sovereignty instituted by it. 2 If this 
proposition be admitted, and it be also admitted that the legislature 
is the sole judge of the necessity for the exercise of those powers, 
the government becomes, practically, absolute and unlimited." 

The political theory indicated in the opinions of the 
several justices is here considered without any regard to 
the correctness of the judgment rendered in these cases. 
Much of the unfavorable criticism on this decision has been 

1 Compare ante, p. 201. 

2 If Judge Chase had ever recognized any " sovereignty " whatever as 
"instituted" by the Constitution, he had helped to build up the idea of a 
supreme or sovereign government, which was turned against him on this 
occasion. 






THEORY OF OUR NATIONAL EXISTENCE. 435 

Political Basis of the Decision. 

founded solely on an assumption that the maxim Stare 
decisis applies in cases involving political rights. For 
reasons already stated, 1 it may be urged that, when political 
powers are involved, the judgment of the Supreme Court 
in the particular case should be recognized as final, without 
accepting the grounds given for that single decision as con- 
clusive on a doctrine of public law. 

It must be clear that the general Government becomes 
" practically absolute and unlimited," just as truly when 
the judiciary, which is as much a part of that Government 
as ''the legislature," is to be the "judge of the necessity 
for the exercise of those powers," to an extent beyond the 
determination of the rights and obligations of parties to 
the particular case presented for its judgment. 

These cases in the Supreme Court are, like all earlier 
cases, a portion of the means of ascertaining what extent 
of power may be legally claimed for the several branches 
of the general or national Government. The discussion of 
this belongs to treatises on constitutional law, properly so 
called. 

In an essay of a political character, the inquiry would 
not be whether these judgments are sustainable in view of 
the Constitution and Amendments, as written law, but 
rather, — assuming that they will be sustained, — what 
theory of the possession of sovereign power they indicate. 

The question, then, is whether these judgments are 
sustainable under any other theory than that which sub- 
stitutes the unitary sovereignty of the nation as a mass, 
represented by a national Government, 2 for the unitary 
sovereignty of the organized States in a voluntary union. 

I shall not offer any opinion whether the language of 
any judge in these cases amounts to a declaration that 
this theory has now become true in consequence of events 
occurring since 1861. The meaning of the phrases now in 

» Ante, p. 350. 2 Ante, p. 356. 



486 THE PLACE OF SOVEREIGNTY. 

The conflicting Decisions ; how reconciled. 

use on the general subject, called in common parlance 
" the results of the war," is as yet too unsettled for a basis 
of such criticism, the question of revolution or'no revolu- 
tion never having been squarely stated. 

But this at least is plain, that, so far as any argument 
to support any view of the present location of sovereign 
power may be based on history before 1861, it would be, 
fro tanto, inconsistent with the idea of basing it on any- 
thing occurring after that date ; for, if this idea be adopted, 
the early history is entirely immaterial. 

The value of all earlier judicial assertions of the origin 
of the Constitution of the United States in tire will of the 
people or nation as a mass, in distinction from its origin in 
the will of the States united, when such assertions are 
compared with the historical record, has already been 
considered. It will hardly be contended that the iteration 
of such assertions, made by judges now on the bench, as 
to facts which occurred before they were born, must have 
a higher value, as testimony, than the assertions of their 
predecessors, for the reason that the newer statements are 
made after a civil war in which the Government had done 
no more than sustain itself in the possession of such 
powers only as it had previously held. 

If any of the members of the court seem to say that 
a question as to what had happened before 1787 had 
been settled by something that had occurred since 1861, 
the absurdity of such language must be explained away 
by supposing them to have intended to say that a political 
event had occurred, after the later date, which made a 
theory true 1 for the future which a certain school of jurists 

1 The judgment in the so-called Legal Tender cases, at December term, 
1870, was in opposition to the judgment on the same question in Hepburn v. 
Griswold, 8 Wall. 626, decided in conference, Nov. 27, 1869. But the con- 
flict in these decisions could perhaps he explained on the supposition that, 
whereas the earlier had been made in view 7 of a political theory which had 
been good enough up to a certain date, the later decision was rendered by a 



THEORY OF OUR NATIONAL EXISTENCE. 437 

Judicial Recognition of a political Change. 

had professed to discover in the history of the last cen- 
tury. 1 

But such a political event could be found only in that 
action of the Government which, on the supposition of the 
continued existence of the eleven States of the Confed- 
eracy, was usurpation, as already contended. 2 

If, therefore, these decisions are sustained on the ground 
that sovereignty in this country is now vested in the 
nation as a mass, and not in the States in their voluntary 
union, it must be assumed that the court has recognized a 
revolutionary change since 1861, or proposes to assist in 
accomplishing such a change by the method of juristical 
construction deprecated by Judge Parker. 3 

majority of justices, some of whom recognized that a revolutionary change 
in the seat of sovereignty had taken place. The judgment in the earlier 
case had been sustained by five (Chase, Ch. J., Nelson, Grier, Clifford, and 
Field, JJ. ; Grier, J., being only against legal tender as extended to prior 
contracts), against three (Miller, Swayne, Davis, JJ.), the court then con- 
sisting, by law, of eight members. The later judgment was supported by 
five (Miller, Swayne, Davis, Strong, and Bradley, JJ.), against four (Chase, 
Ch. J., Nelson, Clifford, Field, JJ.) ; the court, as reorganized by statute, 
taking effect December, 1866, consisting of nine members, Grier, J. having 
resigned ; Strong and Bradley, JJ. were new appointments. See Reporter's 
note, 12 Wall. 528. 

1 Ante, p. 108, ix. 

2 Ante, pp. 107, 333, 346. 

3 Ante, p. 360. As to this question, of the position of the Supreme Court, 
and its being now a practical question, I refer to an article in the North 
American Review, February, 1881, — " Partizanship in the Supreme Court," 
by Senator John T. Morgan. 



438 THE QUESTION OF A REVOLUTION. 

Position of the Judiciary. 



CHAPTER VIII. 

Further Consideration of the Question of a Revolutionary 
Change of the Seat of Sovereign Power. — Position of Private 
Jurists in Reference to such a Question. — Position of Other 
Citizens in Public or Private Station. — The Question of Al- 
legiance a Question foe All. 

It may be that the extracts given in the last chapter from 
recent judicial opinions will suggest the inquiry — Does 
the general Government now exist for the benefit of the 
States, individually and united ; or, do the States, individ- 
ually and united, exist for the benefit of the general Gov- 
ernment? ' 

But this is the question which the Supreme Court has 
always, from its earliest day, failed to answer : for it is 
contradiction to talk of a supreme or sovereign Union, and at 
the same time, of a government which may, as a sovereign 
or supreme government, maintain itself against the States 
which, in their union, are the sovereign United States. 

As has already and repeatedly been stated in these 
pages, in this matter of recognizing the location of sov- 
ereign power, judges are no more than ordinary private 
citizens. If the}' leave the interpretation of the Constitu- 
tion, as law, and undertake to determine the political per- 
sonality who makes it law, they can at best claim only to 
speak as impartial historians, but with no other means of 
discerniug the truth than other historians have. 1 

It is the duty of the historian to accept the facts of to- 
day as he does those of yesterday. It is perfectly legiti- 
mate for a judge to recognize that the law he administers 
to-day proceeds from another sovereign than that from 

1 Ante, pp. 5, 105, 215, 350. 






THEORY OP OUR NATIONAL EXISTENCE. 439 

Position of private Jurists. 

whom the same rule of action proceeded when he admin- 
istered it as law yesterday ; 1 but, from the fact that his 
authority to apply any rule as law must proceed from some 
known political superior, a judicial officer would be rather 
tardy in making any recognition of that sort. 

It therefore was not to be anticipated that the members 
of the judiciary should, in their official character, speak as 
unrestrainedly as to any political changes which may pos- 
sibly be discernible as the result of the civil war between 
the years 1861 and 1868, as may some private jurists, who 
have appeared since that time as writers on our public 
law. 

I have already herein referred to several recent publica- 
tions, 2 which in title and form are juristical works, or 
technical expositions of our constitutional law, as being 
based on that theory of the authority of the written Con- 
stitution, as derived from the will of the people or nation 
as a mass, which I have hereinbefore represented as neces- 
sarily placing the general Government above the United 
States, or the political peoples of the States in a voluntary 
union. 

I readily allow that the authors referred to may not all 
recognize, as a legitimate consequence from their theory, 
that result which I have hereinbefore attributed to it ; that 
is, that it makes the general Government the actual and 
only sovereign. 

That Mr. Pomeroy at least denies the propriety of such 
a conclusion appears in his work on constitutional law, 
especially from § 86, where he observes : — 

" But here it is necessary to repeat and elaborate a general 
doctrine, which has already been dwelt upon with some emphasis, 

1 In the Slaughter House Cases (ante, p. 370), Miller, J. said (16 Wall. 71), 
— " We repeat, then, in the light of this recapitulation of events almost too 
recent to be called history." 

2 Ante, p. 114, n. 






440 THE QUESTION OF A REVOLUTION. 

A Distinction made by Mr. Porueroy. 

and which must be constantly called to mind through the whole 
course of the present inquiry as the solution of many a difficulty 
and apparent contradiction. This truth is, the absolute and neces- 
sary distinction between the nation which is the source of political 
power, and the government which is the creature of that power, 
established to act, in certain cases, instead of, or as the agent of, that 
nation." 

This cautionary statement may be noticed as indicating 
that there is, somewhere, a liability to make the general 
Government something more than an agent, and that this 
occasions " many a difficulty and apparent contradiction." 

Mr. Pomeroy, himself, fails to make " the distinction " 
visible ; because " the nation," which he conceives as " the 
source," is only an hypothesis, and has no actual existence 
as a political personality. 

According to the theory sustained in this essay, there has 
been a tangible, come-at-able somebody who could, as hold- 
ing sovereignty, be discriminated from the government of 
which Mr. Pomeroy speaks. 1 But, under his theory and 
that of a certain school (as a number of writers, more or 
less distinguishable, may be termed), there is this govern- 
ment plainly enough, on the one hand ; but as for the 
sovereign, on the other hand, he must be sought in the 
clouds, or in the realms of fancy : for except as this gov- 
ernment is found, that sovereign cannot be found. 

1 I understand Mr. Pomeroy as meaning by " people " or " nation " in 
this connection, the whole mass of inhabitants, without reference to political 
organization as the political peoples of distinct States, and as agreeing in 
this with Mr. Jameson's conception, ante, p. 328, n. Compare the references, 
ante, p. 118, n. ; p. 127, n. I have hereinbefore referred to this theory as that 
of the school of Story and "Webster, rather because these jurists are com- 
monly supposed to have upheld this theory than from my own conviction 
that this was the case. Neither of them, as far as I know, ever defined 
what be understood by the words "the people of the United States" (ante, 
p. 337), and each may appear to have sometimes accepted the theory of a 
division of sovereign powers, resulting from a grant or cession by the States, 
— the theory sustained by Mr. Webster's biographer, Mr. Curtis, which he 
thinks was Mr. Webster's own and that of " the best minds in New Eng- 
land " in liis day. Ante, p. 115, n. 



THEORY OF OUR NATIONAL EXISTENCE. 441 

Mr. Pomeroy's Statement criticised. 

"Whatever may be the idea of his own position which the 
author intends to give in the section which follows the 
above citation, its language may be noticed as giving a 
wrong idea of the views taken by those who fail to recog- 
nize his own theory. His words are (ib. § 87) : — 

" We affirm that the People of these United States are the nation, 
possessed of supreme powers, and that the government of the United 
States is their creature and agent. All those theorists who deny the 
original and essential unity and nationality of this people, declare 
that the separate states are or were the original nations. As a con- 
sequence it is either expressly maintained, or tacitly assumed, that 
there is no United States apart from the limited government created 
by the Constitution ; in a word, that the United States, and the gov- 
ernment thereof, which we recognize as distinct, are one and the 
same existence. 1 In this short sentence are summed up the dif- 
ferences between the advocates of nationality and those of state 
sovereignty. If we fail to apprehend the truth of the doctrine 
which I have stated, we shall fail to obtain any adequate concep- 
tion of the imperial character of the people as an organic political 
society." 

As I have understood the States-rights theory, all who 
have supported it in any form or degree unite in regarding 
the general Government as the agent of the States in their 
political union, whatever that may be under that theory. 

In the earlier part of this essay I have endeavored to 
show that one may " deny the original and essential unity 
and nationality of the people of the United States," as 
Mr. Pomeroy, Mr. Jameson, and others at the present 
day, understand the word " people," without declaring 
that " the States are or were the original nations." 

That Mr. Pomeroy's own theory necessarily leads to 
identifying the general Government and the United States, 
or rather, in placing that government in the place of sov- 

1 I understand this description as answering substantially to that view 
which I have tried to define under IV., ante, p. 102. 



442 THE QUESTION OF A REVOLUTION". 

The Phrase — " Settled by the War." 

ereignty which belongs to the United States, has, I think, 
been shown in the debates on the reconstruction measures 
and in the judicial opinions cited in the last chapter. 

It is proper to notice that Mr. Pomeroy, with the view 
apparently of strengthening his original position, has in 
the fourth edition of his treatise (1879), in the appen- 
dix (§§ 761-763), represented the Supreme Court as hav- 
ing, in recent decisions, sustained the theory maintained in 
his work. To show this, he cites the language of Chief 
Justice Chase in Lane County v. Oregon, and in Texas v. 
White, ante, p. 12. 1 

Readers who are at all familiar with the course of polit- 
ical controversies in this country, during the last ten or 
fifteen years, will undoubtedly have a general recollection 
of many occasions on which some statement of political 
doctrine, agreeing more or less closely with the views ad- 
vanced by the judges and jurists hereinbefore cited, has 
been proclaimed as "settled by the war." This has been 
done too by persons whose connection with public affairs 
may give more or less weight to such an exposition of a 
mere opinion. It must be superfluous, as it would be quite 
impossible, to exhibit their number and comparative im- 
portance. 

There is, however, a noticeable difference in the various 
assertions of this as a logical conclusion. Two principal 
conceptions of the nature of the supposed settlement may 

1 A letter from the Chief Justice to the author is also given as showing 
that the judge's view was in harmony with his own. Whether such 
agreement can be found, I should not venture to say. The definition of a 
State by the judge (ante, p. 9) seems somewhat inconsistent with the author's 
understanding of his much-quoted assertion of State existence {ante, p. 12), 
and the author's article in " The Nation," also given in the same section, ap- 
proving the decision of the court, appears rather at variance with the 
original theory of the text-book. At the same time, both the judge and the 
jurist are contradicted by the theory of the Reconstruction measures and 
the decisions cited in the last chapter, each placing the States in subordina* 
tion to the general Government. 



THEORY OF OUR NATIONAL EXISTENCE. 443 

Two Conceptions of the Settlement. 

be easily distinguished in such assertions, which, though 
essentially contradictory to each other, are generally pre- 
sented in some sort of combination. 

1. Of these, one may be called the argument founded 
upon the lawyer's point of view of the circumstances. 

2. The other, — one recognizing in the same circum- 
stances a revolutionary change, or something analogous ; 
which may be called the argument founded upon the 
notion of " a war of ideas." 

In the sixth chapter I have made various extracts from 
the debates in Congress on the Reconstruction measures, 
as part of the res gestce, showing on what doctrines of our 
constitutional law the majority supposed their legislation to 
be founded. It is likely that many assertions may be found 
in those debates that some particular doctrine had been 
" settled by the war." It might be possible to distinguish 
here and there a debater who had more or less clearly 
asserted this on one or the other of the two positions above 
stated. 

But in this question, as to the process of reasoning by 
which it is to be known how any doctrine can be settled by 
war, a legislator is no better authority than anybody else. 
This is matter of purely logical demonstration. 

On this account I offer as illustrations of these methods 
of proof some which may present the argument in the 
clearest point of view, without reference to the station of 
those who are the authors. 

As being the most recent statement of this sort, and 
one proceeding from the present holder of the highest 
place in the administration of the general Government, I 
here cite a passage from the Inaugural Address of President 
Garfield, March 4, 1881 : — 

" The supremacy of the nation and its laws should be no longer 
a subject of debate. That discussion, which for half a century 
threatened the existence of the Union, was closed at last in the 



444 THE QUESTION OF A REVOLUTION. 

Illustration of the Lawj-er's Point of View. 

high court of war by a decree from which there was no appeal, — 
that the Constitution, and the laws made in pursuance thereof, are and 
shall continue to be the supreme law of the land, binding alike 
upon the States and the people. This decree does not disturb the 
autonomy of the States nor interfere with any of their necessary 
rules of local self-government, but it does fix and establish the per- 
manent supremacy of the Union." 

This view of the circumstances as a "decree " or judg- 
ment of an issue at law had often been presented at a 
much earlier date. As showing the rationale of what I 
have here designated the lawyer's point of view, 1 no better 
example can be found than that given in the letter of 
Judge Isaac S. Redfield to Senator Foot, to which reference 
has herein already been made. 2 

The writer says in the opening : — 

" It is probably from the fact that I have attempted to look at 
the questions alluded to in your letter as ' Reorganization and Negro 
Suffrage ' from an exclusively legal point of view, more than from 
any other fact, that my deductions present in any degree the ap- 
pearance of novelty or interest. And I suppose their jslausibility, 
if such they possess, is mainly attributable to that logical sequence 
which connects them with their antecedents, and which I have at- 
tempted to preserve. But I am not insensible to the fact that 
many logical and plausible theories in civil jurisprudence, when 
attempted to be reduced to practice, are found as impracticable as 
those of the most absurd and inconsequential character. 

" But as you have had the courtesy to express an interest in my 
speculations or opinions as a mere lawyer, the only office I aspire 
to have, I will give you a mere outline of them in the briefest 
form." 

Judge Redfield proceeded to say : — 

" I. The first great question, then, is, What has been the result 

of the war ? What has it settled ? How does it leave the States ? 

" 1. What questions has the war settled ? — War may fairly be 

i Ante, p. 109. 2 Ante, p. 2G9. 



THEORY OF OUR NATIONAL EXISTENCE. 445 

Judge Redfield's Argument. 

considered as an action pending in the only tribunal having full 
jurisdiction of questions between nations and fragments of nations, 
— the tribunal of force — ultima ratio regum. The results of the 
war then may be, not inaptly, considered under the figure of a 
judgment, in an action in a court of justice ; for such in fact is war 
more than anything else. 

" 2. The judgment, as in other cases, concludes all the issues in- 
volved in the action. The most important of these issues is that in 
regard to the paramount sovereignty of the nation, and the right to 
vindicate that sovereignty by force of arms against all aggressions, 
as well from within as without. We think, then, that the National 
Government may fairly claim, against those engaged in the rebel- 
lion, that the result has established forever their right to the para- 
mount sovereignty, and to vindicate the same by force. And it 
must follow as a result of this, that the war has conclusively de- 
termined that secession is rebellion and treason, and that the National 
Government may put it down by force of arms, and punish the 
offenders in any and all legal modes. It will be seen that this is 
making the national sovereignty not only supreme, but also the 
judge of the extent and nature of its own powers. This is but the 
indispensable consequence of the paramount national sovereignty. 
This was the great and main question involved in the war and 
which must be regarded as forever put at rest by the result of 
the war, or the judgment in the action. 

" But, it will be asked, How does this leave the States ? " — 

His answer is, " Unquestionably, in a subordinate 
position." 

By what next follows in his letter, the writer shows that 
he means that all the States of the Union, not merely the 
" rebel " States, are thus concluded. That is, his position 
is that the arbitrament of war between those eleven States 
or their rebel populations and the government supported by 
all the States voluntarily continuing in union, was like 
a trial at law determining the rights of all the States, 
and that the decision attained by their own victory as 
States composing the Union placed the Northern States 



446 THE QUESTION OF A REVOLUTION. 

The Lawyer's Point of View. 

in a subordinate position to the government they had sup- 
ported. 1 

Judge Redfield said : — 

" Unquestionably in a subordinate position. But that is pre- 
cisely the position in which they are placed by the Constitution." 

This description must apply to all the States. And he 
then went on, contradicting his assumption that the ques- 
tion of the law of the case had been settled by the arbi- 
trament of war, by stating what that law always had been. 
But if he had the right to declare this, there was no need 
of a trial of any sort to settle what the law should be. 
He remarks : — 

" The very fact of giving the national tribunals the supreme 
jurisdiction in all questions affecting the relations of the States to 
the National Government and a supervisory power over the State 
courts, upon all those questions, by inevitable consequence, made the 
nation supreme and the States subordinate. 2 Every lawyer will 
understand this," etc. 

Judge Redfield, being still limited by his lawyers' point 
of view, next took up the then mooted doctrine of " State 
suicide," for holding which, regarding the matter as a 
legal inquiry, he of course could find no ground. 3 

1 That is, the Northern States, which were said to be "loyal," were, on 
this trial, in the same box with the States said to be " disloyal." 

2 I do not know whether Redfield considered himself of the same political 
school with Story. {Ante, p. 272, n.) Here he announced the same theory of 
the Constitution. But he remarked also in this connection, " Encroachment 
in such a relation, is the natural course of events. It is the history of all 
unequal relations that the superior becomes more and more powerful, day by 
day, while the subordinate, year by year and day by day, becomes more and 
more dependent. And it makes no difference whether the claim on the part 
of the superior, in any instance, is just or unjust ; it is sure in the end to pre- 
vail if persistently pursued." Compare ante, p. 343, as to the necessary con- 
sequences of making the "National" Government the only depository of 
sovereign power. 

3 His words are : "4. How, then, shall the States be treated after the sur- 
render of the rebellion 1 — This will depend mainly upon our views of the 



THEORY OF OUR NATIONAL EXISTENCE. 447 

Judge Kedfield's Argument. 

He recognized that such a political result would make 
everything clear and simple ; but was misled by suppos- 
ing that, if received at all, it could be received only as an 
effect of the ivar. In this respect, however, he was no 
blinder than were Mr. Sumner, Mr. Howe, Mr. Boutwell, 
and others. 1 

Seven pages of the letter are given to prove the con- 
tinued political existence of the eleven States. Having 
thus got himself almost into the position of the " Conser- 
vatives," 2 the writer found himself, as a lawyer, brought 
face to face with the question of slavery, which he also 
proposed to settle by finding that the compatibility or non- 
compatibility of slavery, in any State of the Union, with 
our form of government was one of the issues settled by a 
war between the Government and the insurrectionary pop- 
ulations of eleven States. 

His dilemma and its solution are thus stated : — 

" II. But the second grand inquiry, and, we confess, by far the 
most embarrassing one, remains to be considered, — that is, If all 

effect of the war upon the States as political persons or corporate organ- 
izations. If they no longer exist, for any purpose, that will be an end of all 
question. We have nothing to do but to parcel out the territory into new 
States, at the discretion of the National Government, and there is no occa- 
sion to inquire into the modus operandi. That ceases to be a question of right 
and becomes one of expediency merely. But we think very few will claim 
all this at the present day." The position taken in this essay is that, in 
reality, this has been done without being claimed. Ante, p. 235. 

1 Ante, pp. 272, 276, 279. 

2 He spoke of the States as one might of corporations holding their 
powers under municipal law, — argued that secession was ultra vires and the 
ordinances nullities, which was the argument of the so-called conservatives 
(ante, p. 262 ) ; but he held that the State was still to be found in a " con- 
structively loyal " portion of the inhabitants of each State. His theory 
being that held equally by Presidents Lincoln and Johnson, that the powers 
of each State are not primarily rights of the State as a political personality, 
but result from the aggregated "legal rights under the Constitution " be- 
longing to individual citizens, which, in the case of those "loyal" to the 
general Government, were under its protection as legal rights. Ante, pp. 149, 
252. 



448 THE QUESTION" OF A KEVOLUTION. 

The Phrase — " Settled by the War." 

the functions and powers of the States remain the same as before 
the rebellion, what benefit are we to derive from all this expendi- 
ture of blood and treasure ? — This is a question often put, and one 
which carries great weight, far greater than it is entitled to have, in 
many instances. But we do not fear its application to our own 
views. We feel that we have already stated great benefits, 1 result- 
ing from the war, in that it has settled the true relations of the 
State and National authority, and we think the war may fairly be 
regarded as having determined many other questions. 

"1. It seems to us that the National Government may fairly 
claim that the war has determined the truth that slavery is incom- 
patible with the successful operation of our complicated form of gov- 
ernment. We think, then, that the nation may now fairly say to the 
States where slavery has hitherto existed, that the war, having fully 
established the point that slavery is a fatal hinderance in the way of 
the just operation of the National Government, that it must be so 
treated and effectually abolished by the States." 2 

Being also confronted by the question of reconstruction, 
slavery being disposed of, it is rather surprising that the 
learned writer of this letter did not claim that the extent of 
the powers of Congress, under the guaranty of republican 
government, over the extension of the elective franchise 
in all the States, was one of the issues settled by the war. 

1 As it requires two parties to make a war, as two to make a case at law, 
the country at large is under some obligation to the Confederacy for its share 
in procuring for it the "benefits " of this decision. 

2 I do not associate Mr. G. T. Curtis with the publicists of the modern 
Nationalist School, because I understand him as accepting the theory of a 
division of sovereignty, and not that of its being held by the nation as a 
mass. But Mr. Curtis has the same view of an alternative of theories which 
was decided by " ordeal of battle." In his " Discourse," etc. (ante, pp. 294, 
300), he remarks (p. 28), "Suppose that the Southern States had succeeded 
in establishing for themselves, finally, a separate Confederacy, — a firm and 
distinct nation. No philosophical historian and practical statesman would 
thereafter have hesitated to say that for any practical purpose the Northern 
theory of the Constitution of the United States was gone forever. Just so, 
I think, we ought to regard the war as having put an end to the doctrine of 
secession." Compare ante, p. 89, n. 

By a parity of reasoning, if slavery or no slavery was an issue, slave-holding 
should at once have been legalized throughout the United States, in case of 
the success of the Confederacy. 



THEORY OF OUR NATIONAL EXISTENCE. 449 

Judge Redfield's Argument. 

There would seem to have been no limit to his compe- 
tency to determine the issues settled. However, he has 
argued only from his own interpretation of the guaranty, 1 
taking the war as having indicated the particular States 
to which it should be applied, as a consequence of its 
having settled the emancipation issue. 

Even if there were any real parallel between a war, the 
nature of which excludes the idea of legal determination, 
and an action at law between two private parties, who, by 
the supposition, are under the legislative will of a common 
superior, by whose intervention the trial is held, it is 
evident that the author of this letter, trying to write as a 
lawyer, arrogated to himself individually the right to 
settle, after the supposed trial of the action, the issues 
which were to be judged. 

It would be consistent with the nature of war to say that 
the prevailing party must have the power, after its physical 
power has been acknowledged by the defeat of the other, 
to consider anything he may choose as settled by it. 2 In 
the present case, however, as has been shown, there is no 
evidence that a majority, even of those who maintained 
the military action of the Government, did so with any 
such ideas of the nature of the issues ; and far less can 
it be shown that there was a majority of the nation, as a 
mass, who contemplated such a result. 3 

Throughout this essay I have endeavored to avoid all 

1 As Redfield, in this part of his letter, recognized most explicitly that the 
extension of the elective franchise, even for " national elections " (ante, p. 
404), had been left to the States, he found it necessary to elaborate at some 
length his explanation of the guaranty. 

2 Ante, p. 3. 

8 Ante, p. 347, n. 4. To say nothing of the fact that such issues had been 
expressly repudiated by the House of Representatives when the war began 
{ante, p. 42, n.) and in Mr. Lincoln's earliest proclamations (ante, pp. 54, 55). 
Considering how closely Judge Redfield's and Mr. Loring's pamphlets (ante, 
p. 269) accord with the subsequent measures of Congress, and with many 
later utterances from high places, it would be only justice to remember 
them as leading exponents of the later American constitutional law. 



450 THE QUESTION OF A KEVOLUTION. 

Mr. Garfield's View of the "War. 

allusion to political parties, even by naming them. It 
must, however, be obvious that, as the questions herein 
considered affect the political , obligations of each inhabi- 
tant of the country, it is impossible to cite the words of 
men whose opinions will be received as representative 
of those of many others without seeming to introduce the 
issues of party contest. 

In the course of distinguished service during the last 
fifteen years, as member of the House of Representatives, 
Mr. Garfield, at occasions presenting issues of primary im- 
portance, had stated more or less fully his own theory of 
our national existence. These statements must now have 
a greatly increased significance, as representative opinions, 
in consequence of the elevation of their author to the 
highest office under the Constitution, depending on the 
electoral votes of all the States. 

I have already cited a passage from President Garfield's 
Inaugural, 1 as illustrating the claim that, as a mode of 
settliug political principles, a war may be compared to an 
action at law settling a legal controvers} r . 

It will, however, be only just to the author of the In- 
augural to recall that, long before the opportunity to speak 
with the highest possible prestige for his opinions, he had 
indicated his own acceptance of that basis which has here- 
inbefore been presented as the only one possible if the 
theory maintained in this essay is rejected, — the basis 
that, as matter of historic fact, the theory of government 
which he, personally, held had become true by revolution. 

I therefore cite his words as illustrating the second of 
the two conceptions of the phrase " settled by the war." 2 

1 To avoid possible misconstruction, I may state that the entire preceding 
seven chapters of this essay were already in type before the delivery of this 
Inaugural, March 4, 1881, and that I had no knowledge of the remarks 
hereinafter cited from Mr. Garfield's speeches in the House, until after that 
date. 

2 Ante, p. 443. 



THEORY OF OUR NATIONAL EXISTENCE. 451 

Mr. Garfield's Speech, Aug. 4, 1876. 

On the 4th August, 1876, the House being in committee 
of the whole on the state of the Union, Mr. Garfield, being 
then a representative from the State of Ohio, having the 
floor, framed his remarks mainly as a reply to those of Mr. 
Lamar, 1 a representative from the State of Mississippi. 

After a few introductory sentences, Mr. Garfield said: — 

" With all my heart I join with the gentleman in rejoicing that 

the war-drums throb no longer, and the battle-flags are furled, 

and I look forward with joy and hope to the day when our brave 
people, one in heart, one in their aspirations for freedom and peace, 
shall see that the darkness through which we have traveled was a 
part of that stern but beneficent discipline by which the Great Dis- 
poser of events has been leading us on to a higher and nobler na- 
tional life. 

" But such a result can be reached only by comprehending the 
whole meaning of the revolution through which we have passed 
and are still passing. I say still passing ; for I remember that after 
the battle of arms comes the battle of history. 2 The cause that 
triumphs in the field does not always triumph in history. And 
those who carried the war for union and equal and universal free- 
dom to a victorious issue can never safely relax their vigilance 
until the ideas for which they have fought have become embodied 
in the enduring forms of individual and national life. 3 

" Has this been done ? Not yet. 

* I ask the gentleman in plainness of speech and yet in all kind- 
ness, is he correct in his statement that the conquered party accept 
the results of the war ? Even if they do, I remind the gentleman 
that accept is not a very strong word. I go further. I ask him 

1 Mr. Lamar's remarks on the second of the month are found in the Cong. 
Record for the first session of the forty-fourth Congress, beginning p. 5087. 
Mr. Garfield's reply begins on p. 5180 of same report. The speech was, 
as I have been informed, printed as a pamphlet, with the title, " Can the 
Democratic Party be safely intrusted with the Administration of the Govern- 
ment ? " Passages from it appeared in most of the "Lives" of the suc- 
cessful candidate published before the election in 1880, and a long extract 
is given in Chips from the White House, by J. Chaplin. 

2 Compare the opening remarks of the first chapter, ante, pp. 2, 3. 
8 Compare the quotation from Mr. Jameson, ante, p. 367. 



452 THE QUESTION OF A REVOLUTION. 

Other Writers on the "War. 

if the democratic party have adopted the results of the war. 1 Is it 
not asking too much of human nature to expect such unparalleled 
changes to be not only accepted, but, in so short a time, adopted by 
men of strong and independent opinions? 

" The antagonisms which gave rise to the war and grew out of 
it were not born in a day, nor can they vanish in a night." 

But as this is a political question, in distinction from a 
legal one, the right to discuss it cannot be altogether en- 
grossed by those who may, as statesmen, judges, or private 
jurists, think themselves specially qualified. Others, not 
professing to have had juristical training, but as fully 
qualified by education and civic virtues to consider any 
question belonging to history and political philosophy 
as are any members of the judiciary, have declared the 
theory for which they arrogate the names of " nationalism" 
and " unionism," settled by the war. 2 It may well be that, 
from the less technical character of their speeches or writ- 
ings, their arguments will reach a much wider circle of 
readers than the best reputed legal treatises can command, 
and some of them may have an audience abroad among 
those who have no other acquaintance with the history of 
our public law. 

1 It will be noticed that here the speaker used the terms, " the conquered 
party " and " the democratic party," as equivalent terms : and from this pas- 
sage and others to be cited hereafter, it will appear that he placed all his 
political opponents, irrespective of residence in States north or south, in the 
same category in respect to what he here describes as " a revolution," and 
" unparalleled changes," for opposition to which, as the adherents of an old 
regime, he charges them with treason, while he claims for himself and his 
political associates the position of successful revolutionists. The passages 
which in Mr. Garfield's remarks follow the above citation are also an illus- 
tration of the theory of a revolution. They will be found hereinafter cited 
under a somewhat different view of the same question {post, p. 465), as illus- 
trating " the war of ideas." 

2 To say nothing of the name "imperialism." Compare Bateman's Politi- 
cal and Constitutional Law, §§ 101-111. I do not concede the justice of 
this exclusive claim to the terms " nationalism " and " unionism," because I 
hold that national existence is fully realized under that theory which recog- 
nizes the States in union as the sovereign. 



THEORY OF OUR NATIONAL EXISTENCE. 453 

Limitations of the ordinary View. 

It would be impossible to distinguish any one or more 
publications with a view to exhibit the train of thought or 
method of argument adopted by all as a class. The writers 
referred to may, in a general way, be described as those 
who maintain that, whether the theory which they approve 
was or was not true as fact before the year 1861, it has, in 
consequence of events after that date, now become estab- 
lished as a fundamental fact, enlarging or confirming the 
powers of the general Government, and subordinating 
those of the States in some undefined degree. 1 

These writers may or may not appear to their readers to 
indicate a recognition of anything like a revolutionary 
change ; and, if they do this in any degree, it does not ap- 
pear to be upon the principle, already herein accepted, that 
any political change, if it be matter of fact, is to be accepted 
simply as matter of fact. 

The writers referred to do not appear to have thought 
of showing that the construction of the Constitution, as 
law, which they personally hold to be correct should be 
now accepted because the action of the general Govern- 
ment, following its military success and made possible by 
it, 2 can be defended upon that construction and upon no 
other. This it would be perfectly legitimate for them to 
do, and in accordance with the method followed in this 
essay. 

1 As an example of the history accepted by writers of this class, Mr. R. 
Frothingliam's Rise of the Republic of the United States, p. 3, may be 
cited : " This element of union has met triumphantly every trial. Its great- 
est crisis by far was the late appeal to the only jurisdiction between nations, 
and fragments of nations, the ultima ratio regum, — the tribunal of force. 
The judgment then rendered, after a field of war unparalleled in the annals 
of domestic strife, is that these States and communities are associated in a 
bond of union that is indissoluble ; that the supreme law of the land or- 
dained in the Constitution is paramount ; that the Government, acting under 
this law, has the right and power to vindicate its authority by force; and 
that itself is the judge of the nature and extent of its own powers." The 
author here refers to Redfield's letter, and to Draper's Civil Policy in Amer- 
ica, p. 85. 

2 Ante, pp. 3, 4, 322. 



454 THE QUESTION OF A EEVOLUTIOK 

Ordinary Conceptions as to the War. 

Nor do these writers offer any proof that the military 
success of the general Government, or any other demon- 
stration of its political purposes indicates that " the 
bulk of the community," or " the people overwhelmingly 
united," 1 have determined that a certain view or theory 
as to the seat of sovereignty shall now be accepted, what- 
ever may have been the actual investiture of sovereignty 
before the war. They do not attempt to show even that 
a certain opinion on this subject was embraced by a ma- 
jority of those who supported the Government in resisting 
secession as rebellion, nor that the Eeconstruction mea- 
sures were approved by a majority even of the inhabitants 
of the Northern States. Their argument, when reduced 
to its elements, is that a certain theory must be now rec- 
ognized as established because they, who individually think 
it ought to be received, were, though comparatively per- 
haps only a handful, among those who supported the pre- 
vailing combatant. 2 

It might be inferred from the language of some of these 
writers that there had been two political doctrines as to 
the best foundation of government for this country, and 
two opinions as to the moral, economical, and political ad- 
vantages or disadvantages of negro slavery ; that these two 
doctrines and two opinions were perfectly well apprehended 
by the people of the country, North and South, as a mass 
of men, women, and children, without discrimination of 
any bodies of electors or voters for State or general gov- 
ernments as actually holding political power ; and that, 
further, there had been a general understanding among 
this people, as a mass, North and South, that there should 

i Ante, p. 347. 

2 Or, their argument is that " the people," as a whole, must have sanc- 
tioned certain measures, because all persons who disapprove such measures 
are not to be considered as part of such " people." Compare the remarks of 
Mr. Garfield hereinafter cited {post, p. 470) from the continuation of his 
speech of Aug. 4, 1876. 



THEORY OF OUR NATIONAL EXISTENCE. 455 

War as Evidence of past Fact. 

be a war, in which the Government of the Confederated 
States should represent one doctrine of government and 
one opinion of slavery, and the general Government should 
represent the other doctrine and opinion, and that the doc- 
trine and opinion represented by the conqueror should be 
accepted by the whole people, as a mass, North and South, 
for the future, as the only basis of political existence : the 
choice between the two doctrines and two opinions being 
made to depend upon a bloody war of four years' dura- 
tion, though it might, by a like general understanding, have 
been made to depend on a game of cards or the turning 
up of a cent. 

But, however confidently any disciples of this school may 
present their own view of constitutional jurisprudence as 
something which may be known by the victory of one army 
and the defeat of another, they do not relinquish in the 
least their inconsistent and uow superfluous claim for a 
basis for those views in the earlier political history. 

In fact, it would appear from the method of demonstra- 
tion adopted by all of this political school, whether speak- 
ing as judges of the Supreme Court, statesmen, private 
jurists, or historians, that the political events which have 
occurred since 1861 are not only taken by them as indicat- 
ing the present and prospective possession of sovereignty 
b}^ the nation as a mass, solely represented by a "National " 
government, in respect to which the States are to be sub- 
ordinate corporations, but as being testimony that the same 
possession of sovereignty existed when the Constitution 
was adopted in 1787. * 

From the language of the greater number of these pub- 

1 I am not aware that anybody, thus far, has claimed that the historical 
question whether negro slavery had ever been lawful in the colonies and 
States was one of the issues settled by the war. Though some seem in- 
clined to regard their own interpretation of the Preamble of the Declaration 
of 1776, in the sense of a legislative abolition decree, as one of the matters 
80 settled. 



456 THE QUESTION OF A REVOLUTION. 

Of the War as a War of Ideas. 

licists it might be inferred that it had been understood and 
agreed among all, North and South, not merely that the 
issue in the field should determine for the future, the po- 
litical fact for the whole country, but that the same appeal 
to the God of battles should settle which of the two theories 
had the support of history before 1861 ; that is, which view 
of facts from 1776 to 1861 should thereafter be held as the 
genuine one. 1 

The simplicity in this respect of some .of these writers 
on public law suggests a return to that mediaeval jurispru- 
dence under which the honor of a woman, or the loyalty 
of a man, or any question of past fact, was determinable 
by the ordeal of fire or by that of battle, by champion or 
in person. 

So far as publicists of this class, whether they claim to 
speak as statesmen, lawyers, or historians, attempt to avoid 
these puerilities, they do it by resorting to others. 

They argue that the prevailing party, because it was the 
party which actually prevailed, must have represented ideas 
which, being forces of nature or laws of nature in that 
sense, must always have had, in themselves, authority as 
municipal law derived from political sources, even though 
the written Constitution, the earlier laws of Congress, the 
laws of the several States, and the political and social 
habitudes of the people might have been contrary to these 
ideas. 2 

Hence it follows, according to their reasoning, that, 
however inconsistent the action of the general Govern- 
ment may have been with that which was to have been 
expected by ordinary deduction from the Constitution and 
general principles of public law, there was no revolution- 
ary action or usurpation on its part 3 in treating the at- 

1 Compare ante, p. 99, as to the constant tendency to confound doctrine 
and history in these questions. 

2 Compare, ante, p. 278. 8 Ante, p. 107. 



THEORY OF OUR NATIONAL EXISTENCE. 457 

Of Nationalism as a Law. 

tempted secession as the rebellion of States in their political 
capacity. The Government, while in appearance actively 
carrying out certain measures, as if in exercise of indepen- 
dent political volition, was really, according to their argu- 
ment, only unconsciously, or at least passively, exhibiting 
the operation of forces all along concealed beneath consti- 
tutions and political arrangements which were now for the 
first time exhibiting their necessary though secret unison 
with the " higher law." 1 

It may be well to notice that this idea or law of nation- 
alism, unionism, imperialism, or whatever else it may be 
called, has not hitherto been presented by anybody as 
known from the actual succession of political events in 
this country. It would be perfectly reasonable, and in 
accordance with the distinction already herein made, 2 for 
non-professional advocates of the theory to argue that on 
no other basis than this can the action of the Government 
since 1861 3 be known as legitimate, or as anything else 
than usurpation. They might say that, as matter of fact 
and history, submission to this action has been enforced 

1 This corresponds with the fetisli ideal of the Constitution (ante, pp. 305, 
321, 339, 357) ; for the supposed deity must have its choir of self-consti- 
tuted priests to proclaim its oracles. 

The position above described is totally distinct from the recognition that 
any holder of supreme political power must ultimately come to grief who 
does not conform his legislation to the observed " laws of nature." This 
point is well stated in Argyll's Reign of Law (p. 326, Ch. VII., " Law in 
Politics"), and the legitimate recognition of such a "reign of law " is illus- 
trated in the introductory remarks by Mr. Garfield, on a bill for taking the 
Ninth Census, Dec. 16, 1869, 2d Sess. 41st Congress, Globe, 178. But, here, 
the question is whether one citizen may be treated as a traitor by another, 
because he may not think it advisable to exercise his political rights, under 
a constitution, in accordance with doctrines which the other regards as laws 
of nature, or " decrees of the Almighty." Compare, ante, p. 367. 

2 Ante, p. 348. 

8 Either in suppressing the rebellion, as the rebellion of States in the 
Union (ante, p. 354), or in abolishing slavery in the slaveholding States of 
the Confederacy, while recognizing them as possessors of the same power 
over personal status which was held by every other State. (Ante, p. 200.) 



458 THE QUESTION OF A EEVOLUTION. 

Of Nationalism as a Law. 

under this idea, and, therefore, it must now be accepted 
in theory, even though the judiciary and the jurists should 
have failed in their defence of that action under any of 
the methods ordinarily known in courts of law for de- 
termining any action as legitimate under written consti- 
tutions. 1 

But, in contrast to this method, these writers present 
their solution of the problem as a deduction from prin- 
ciples assumed a priori. 

They present what they call nationalism, unionism, and 
empire, as a political force necessarily inherent, at the pres- 
ent day at least, in all masses of population occupying 
some presupposed territory, 2 which like the will of an ac- 
tual person claiming homage or allegiance, unifies or con- 
centrates political powers formerly held separately, or as 
antagonistic, within the same territory. 

From the reputation for attainment in physical science 
which some writers of this school can justly claim, it is 
only fair to infer that they do not themselves regard this 
principle of theirs as an a priori assumption, but as one of 
those " laws," as they are accustomed to term them, which 
are generalizations of observed facts ; that is, modes of ac- 
tion in nature. They would probably say that they know 
that this "law," which they call "nationalism," etc., exists 
as a force controlling the wills of men in their political ac- 
tion, from a generalization of successive events in European 
political history. They would probably point to the fact that 
what are now called " nations," that is, populations more or 
less homogeneous in race and connected by a common lan- 

i Ante, pp. 348, 361. 

2 The territory to be recognized as the place for the destined nation is 
supposed by such writers to be determined, not by antecedent political 
arrangements (for under their view these must be consequences and not 
causes), but by economical considerations, based on geographical and topo- 
graphical advantages or disadvantages. See Dr. Draper's political treatises. 
Compare, ante, p. 98, note. 



THEORY OF OUR NATIONAL EXISTENCE. 459 

Of Nationalism as a Law. 

guage, occupying a relatively large territory under a unitary 
political system of some sort, exist at the present time where 
a few centuries, or even decades, ago a divided or relatively 
fractional arrangement of the same lands and populations, 
in respect to political existence, had prevailed. 1 

So far as any of these writers, whether jurists or physi- 
cists, present any argument in applying their supposed 
"idea," it is based entirely on the double meaning of the 
term " a law." 2 They assume that what they recognize 
as an " idea," or have conceived as a law in the sense of an 
observed fact or mode of action, that is, a law in the sec- 
ondary sense, shall be understood by everybody as a law 
in the primary sense, that is, as a rule of action. They 
conceive of this law as one of political authority, acting 
upon each individual constituent of the several masses of 
population, which, with the territory occupied, should be 
" a nation," and making it the political duty of each, which 
it is treason to deny, to abandon all political combination 
in and all allegiance to pre-existing smaller political per- 
sonalities, and to submit themselves to some more unified 
or consolidated form of political existence, distinguishable 
by grander geographical conditions. 

It is, however, unfortunate for writers of this class that 
the history of political society in other times and countries 
does not support the generalization which they call "law," 
that is, law in the secondary sense of the word, as a mode 
of existence or of action. In point of historic fact, the 
genesis of modern nations has not taken place in conse- 

1 " Political integration," is a term used by Herbert Spencer as applica- 
ble to this process. 

2 « Words, which, should be the servants of thought, are too often its 
masters ; and there are very few words which are used more ambiguously, 
and therefore more injuriously, than the word ' law.' . . . It matters little in 
which of these senses it is used, provided the distinctions between them are 
kept clearly in view, and provided we watch against the fallacies which 
must arise when we pass insensibly from one meaning to another." — Argyll's 
Reign of Law, 5th Am. Ed. p. 03. Compare, ante, p. 97. 



460 THE QUESTION OF A REVOLUTION". 

History of Nationalism as a Fact. 

quence of any " idea " or "yearning " in populations, com- 
pelling them to become unified or massed together under 
one consolidated government. The unification has taken 
place, in times more or less recent, but always by a process 
exactly the reverse of that which these supporters of " na- 
tionalism " have imagined as a basis for their generalization. 
As matter of history, the political change, from a structural 
separatism to a structural nationalism, has been effected by 
the action of some distinct and relatively minor political 
organization, employing force, fraud, diplomacy, intrigue, 
dynastic marriages, etc., in absorbing or adding to itself its 
weaker political neighbors as the parts constituting the 
personality finally known as a nation. 

As matter of historic fact, it has always been the pre- 
existing smaller political personality, or state, that has 
brought about the later existence of the nation as a mass 
of population in unity, and never a pre-existing mass of 
population in unity as the nation that has brought about 
the later existence of subordinate smaller political person- 
alities, or states. 

This has been exemplified in every country in Europe, 
from the first decline of feudal institutions founded on the 
ruins of the Roman Empire, to the latest political arrange- 
ments. 1 

1 In Great Britain from the time of the Anglo-Saxon heptarchy, in the 
absorption of Wales, Ireland, and Scotland; in France under Louis XI., 
Henry IV., and their successors ; in Spain from the time of Ferdinand and 
Isabella. So in Italy by the history of the house of Savoy, and in Germany 
by that of Prussia, — mostly within the last half century. " But in both it 
was by the advance of an existing state, which extended itself to include 
wider and wider territories, and gave to them its organization, that the 
unity of the nation was brought about. And this was done with little or no 
change in the internal constitution of the growing kingdom, little or no 
movement towards a resettlement of society on democratic foundations. In 
the constitution of the North German Confederation and the new German 
Empire there is no mention and little indirect recognition, of those ' Funda- 
mental Rights of the German people,' on which the Frankfort Parliament of 
1848-1849 spent so much precious time and toil." — Bryce's Holy Roman 
Empire, 437. 



THEORY OF OUR NATIONAL EXISTENCE. 461 

Of Emancipation under an Idea as Law. 

. It is also remarkable that in the very latest instances, 
and while this theory of nationalism as an " idea," or force 
of nature operating of necessity, has been most loudly pro- 
claimed and made the doctrine of a school, its advocates 
have generally been found resisting the actual unification, 
when it was in progress under the only method by which 
it had ever been known to take place before. They saw 
their desired end in the process of accomplishment by the 
only means which experience had shown to be practicable ; 
but they opposed it because it was not brought about in 
accordance with their theory, that is, in some unexplained 
manner, incompatible with the nature of things. 1 

It is by a similarly deceptive use of the double meaning 
of the word " law " that so many have justified for them- 
selves the action of the Government in respect to negro 
slavery, not so much in the matter of emancipation during 
the war 2 as in the Reconstruction policy followed in secur- 
ing the assent of the ten States of the Confederacy to the 
Thirteenth and Fourteenth Amendments, and in forcing 
upon them the admission of the emancipated negroes to 
suffrage. 3 

1 Compare Lectures on German Thought, by K. Hillebrand, pp. 283-286, . 
remarks on Germans, and the political party called " Little Germany." I 
claim that while the course of events in this country, since 1861, has illus- 
trated the process by which all national consolidation had previously taken 
place, it is also a direct contradiction of the theoretical nationalism of these 
publicists. It was the States remaining in their voluntary union, not a "Na- 
tional " government, not an abstract, — " the Union," — distinguished from 
States united, and far less the people or nation as a mass of individuals, 
who by force established their exclusive possession, in union, of all sover- 
eignty over populations disposed to resist it. Ante, pp. 151, 354, n. 2. 

2 The emancipation, so far as it was independent of the Fifteenth 
Amendment, may be popularly supposed to be due to an exercise of a 
" war-power " held by the executive. Compare, ante, p. 199. As other arti- 
cles in the North American Review on this subject have herein been noticed 
(ante, p. 347), a still later assertion of the validity of the Emancipation 
Edict, in an article by Mr. Aaron F. Ferris, December, 1880, should be also 
mentioned. 

3 Ante, pp. 217, 256. 



462 THE QUESTION OF A REVOLUTION. 

Of Ideas regarded as Laws. 

Having recognized what they call an "idea," as a con- 
ception based on an observed succession of facts in the his- 
tory of general jurisprudence, that is, a laiv in the secondary 
sense, indicating the increase of equality among all private 
persons in relation to the state and the decline of all forms 
of involuntary servitude, — some persons present this 
" idea " as a laiv in the primary sense of a rule of action, 
which, like the " idea " or " law " of nationalism or union- 
ism, may have coercive effect independently of the volition 
of any possessor of political force. 

But, even if it be admitted that such idea or principle, 
or law in the sense of an observed mode of action, is dis- 
tinguishable by the philosophical historian in the history 
of social institutions, 1 it is evident from the nature of politi- 
cal existence — which is nothing else than the manifestation 
of personal will, the will of one or of many actual human 
beings 2 — that such a law imposes no political obligation 
upon anybody. By undertaking to enforce it, a govern- 
ment must contradict the position that it is such a law or 
supposed necessary condition of things ; for a law that 
has to be enforced by a political sovereign cannot be a law 
of nature or observed condition of existence. 3 The so- 
called "laws" discovered by Galileo, Kepler, and Newton 
acted for them and for all the popes, princes, and peoples of 

1 The author of the Reign of Law distinguishes five secondary senses of 
the word law ; the fifth, — "As applied to abstract conceptions of the mind, 
— not corresponding with any actual phenomena, but deduced therefrom as 
axioms of thought, necessary to our understanding of them. Law, in this 
sense, is a reduction of the phenomena, not merely to an order of facts, but 
to an order of thought." 5th Am. Ed. p. 65, see also p. 108 of the same. 
Undoubtedly, an idea or law of nationalism or unionism, in this sense, may 
be recognized. So, too, the famed " social compact " is a fact, regarded as 
a law in this sense, and the same may be said of the doctrine of natural 
equality. Compare Jameson's Const. Law, §§ 65-67. 

2 Compare Dr. Maine, ante, p. 829, note. 

3 "Force is the root-idea of law in its scientific sense." — Reign of Law, 
p. 69. 






THEORY OF OUR NATIONAL EXISTENCE. 463 

Of a War of Ideas. 

their times, whether the popes, princes, and peoples ordered 
them to act or not. 

In applying their "ideas" or "laws" to the circum- 
stances of this country during the last twenty years, the 
publicists of this school represent the general Government 
as applying or enforcing these ideas or laws as the rule of 
a known political superior, which it was criminal or trea- 
sonable on the part of any States or individual citizens to 
disobey. 1 

To bring about the required connection between these 
ideas, or so-called " laws," and the political authority rep- 
resented by the general Government, these publicists im- 
agine the ideas themselves as the actual parties in a war 
against opposite ideas of slavery and separate State sover- 
eignty, — a war which in appearance only was carried on 
by that government as in the ordinary case of a holder of 
political power resisting an armed rebellion. 2 

It is common with them to speak of the war as " a war 
of ideas," and of the issue of the war as determining the 
moral and political status of two classes of the inhabitants 
of this country, regarded as subjects, partisans, or allies of 
one or the other of these two sets of ideas, without refer- 
ence to any question of pre-existing allegiance to some 
political superior. 

i Ante, pp. 271, 278. 

2 In the course of a debate, to be noticed hereinafter, Mr. Garfield said, 
June 27, 1879, 46th Cong. 1st Sess. Record, 2390 : " The dogma of State 
sovereignty, in alliance with chattel slavery, finally made its appeal to the 
court of last resort, where the laws are silent, and where kings and nations 
appear for judgment. In that awful court two questions were tried, — Shall 
slavery live 1 and Is a State so sovereign that it may nullify the laws, and 
destroy the Union ? Those two questions were tried in the thousand battle- 
fields of the war; and if war ever ' legislates,' as a leading Democrat once 
wisely affirmed, then our war legislated finally upon those subjects, and 
determined beyond all controversy that slavery never should again live in 
this republic, and that there is not sovereignty enough in any State either 
to destroy the Union or nullify its laws." In this incongruous mixture of 
images, war figures both as judge and legislator. 



464 THE QUESTION OF A REVOLUTION. 

Of a War of Ideas. 

Under this view of the nature of the war, the citizens of 
the States of the Confederacy are to be deemed rebels or 
traitors, not because they rose in arms against a political 
sovereign, but because the armies representing slavery and 
separate State sovereignty were defeated by armies repre- 
senting the antagonistic ideas. 

It is therefore perfectly natural, or logical, for these 
persons to regard as rebels and traitors any citizens of a 
Northern State who disapproved of the emancipation policy, 
or who believed that the Constitution derived its authority 
from the States in union, even though they had support- 
ed the general Government in maintaining its constitu- 
tional authority. 1 

From such premises it would be natural to conclude 
that, if the military result had been different, not only 
would the Confederate States have achieved their inde- 
pendence, but the people of the Northern States — or a 
portion of them, easily distinguished by their professed 
devotion to " ideas " — might have been legally punishable 
by the conquerors as traitors. 

But as this would be a self-stultifying possibility, many 
have tried to make out a connection between their own 
ideas of nationalism or unionism, of liberty of personal con- 
dition, political equality, etc., and the legislative will of a 
possessor of political power, by assuming that, as matter 
of history, these ideas had been proclaimed with legislative 
intent by the people or nation, as sovereign, at the time of 
the Revolution of 1776, in advance of any legislative action 
of any State or Federal government. They refer to the 
preamble of the Declaration, as containing a rule of action 
binding and loosing with the force of law, though they 
admit that it had been constantly violated from that mo- 
ment, by the constitutions of the States, the constitution 

1 Compare post, p. 468 and the citations to be given hereinafter from 
Mr. Garfield's speech of Aug. 4, 1876. 



THEORY OF OUR NATIONAL EXISTENCE. 465 

Mr. Garfield on the War of Ideas. 

of the United States, and the laws proceeding from the 
general and State governments. 1 

The most recent illustration of this deduction of legal 
principle is to be found, somewhat fantastically modified, 
in the Inaugural of President Garfield, in a sentence imme- 
diately following those already cited, ante, p. 400. 

" The will of the nation, speaking with the voice of battle, and 
through the amended Constitution, has fulfilled the great promise 
of 1776, by proclaiming 'liberty throughout the land to all the in- 
habitants thereof.' " 2 

In continuing his remarks (ante, p. 452) in the House, 
on the 4th August, 1876, Mr. Garfield said : — 

"Mr. Chairman, great ideas travel slowly, and, for a time, noise- 
lessly as the gods, whose feet were shod with wool. Our war of 
independence was a war of ideas, of ideas evolved out of two hun- 
dred years of slow and silent growth. When, one hundred years 
ago, our fathers announced as self-evident truths the declaration 
that all men are created equal, and the only just power of govern- 
ments is derived from the consent of the governed, 3 they uttered a 

1 This idea may be traced in many of Mr. Lincoln's addresses, as can be 
seen in any of the memoirs which have been written. Compare Mr. Lowell's 
expressions. (Ante, p. 271.) Mr. Boutwell, in a speech at Weymouth, July 
4, 1865, said that the government had, till then, proved a failure, because it 
did not agree with the Preamble to the Declaration. 

2 Those who are familiar with the minor incidents of the Revolution will 
suppose that the record of the promise referred to was made, when the Dec- 
laration was proclaimed, by the ringing of a bell, popularly known as " the 
Liberty Bell," in the belfry of the building in Philadelphia afterwards called 
Independence Hall, in which the Revolutionary Congress was assembled. 
This bell, at its first casting in England, and at its recasting, after fracture, 
in Philadelphia, bore the inscription ; " By order of the Assembly of the 
Province of Pennsylvania, for the State House in the city of Philadelphia, 
1752. Proclaim liberty throughout the land to all the inhabitants thereof. 
Levit. xxv. 10." 

The judiciary, hereafter, may be compelled to be guilty of a bad pun, 
by citing the founders of this bell as even higher authority than the " foun- 
ders " of the Constitution. 

8 The speaker's idea of " the consent of the governed " may be peculiar. 
During the first (extra) session of the Forty-Sixth Congress, an excited 
debate arose from the opposition to an appropriation bill for the support of 



466 THE QUESTION OF A REVOLUTION. 

Mr. Garfield's Speech, Aug. 4, 1876. 

doctrine that no nation had ever adopted, that not one kingdom on 
the earth then believed. Yet to our fathers it was so plain that 
they would not debate it. They announced it as a truth 'self- 
evident.' . . . x 

" It will not do. Mr. Chairman, to speak of the gigantic revolu- 
tion through which we have lately passed as a thing to be adjusted 
and settled by a change of administration. It was cyclical, epochal, 
century-wide, and to be studied in its broad and grand perspective, — 
a revolution of even wider scope, so far as time is concerned, than 
the Revolution of 1776. AVe have been dealing with elements and 
forces which have been at work on this continent more than two 
hundred and fifty years. I trust I shall be excused if I take a few 
moments to trace some of the leading phases of the great struggle. 
And in doing so, I beg gentlemen to see that the subject itself lifts 
us into a region where the individual sinks out of sight and is ab- 

the army for the year ending June 30, 1880. Mr. Garfield, March 29, 1879, 
speaking of this action of the majority as " revolutionary " said : " Our the- 
ory of law is free consent. That is the granite foundation of our whole 
superstructure. Nothing in this republic can be law without consent, — the 
free consent of the House ; the free consent of the Senate ; the free consent 
of the executive, or, if he refuse it, the free consent of two thirds of these 
bodies. Will anybody deny that ? Will any man challenge a line of this 
statement, — that free consent is the foundation rock of all our institutions ? " 
It may at least be questioned whether anybody ever understood the " con- 
sent of the governed " as meaning only that the legislature should be 
free to use its power. Mr. Garfield's application was that the majority 
would be using " its voluntary powers to destroy the government " by re- 
fusing the appropriation to carry into effect the provisions of an existing 
statute. Cong. Record, p. 116. 

1 The intervening paragraph is as follows : — 

" Whence came the immortal truths of the Declaration ? To me this was 
for years the riddle of our history. I have searched long and patiently 
through the books of the doctrinaires to find the germs from which the Dec- 
laration of Independence sprang. I find hints in Locke, in Hobbes, in 
Rousseau, and Fe'nelon ; but they were only the hints of dreamers and phi- 
losophers. The great doctrines of the Declaration germinated in the hearts 
of our fathers, and were developed under the new influences of this wilder- 
ness world, by the same subtile mystery which brings forth the rose from 
the germ of the rose-tree. Unconsciously to themselves, the great truths 
were growing under the new conditions, until, like the century-plant, they 
blossomed into the matchless beauty of the Declaration of Independence, 
whose fruitage, increased and increasing, we enjoy today." 

Compare remarks on the same subject, ante, pp. 297, 814. 



THEORY OF OUR NATIONAL EXISTENCE. 467 

Mr. Garfield on the War of Ideas. 

sorbed in the mighty current of great events. It is not the occa- 
sion to award praise or pronounce condemnation. In such a revo- 
lution men are like insects, that fret and toss in the storm, but are 
swept onward by the resistless movements of elements beyond their 
control. I speak of this revolution, not to praise the men who aided 
it, or to censure the men who resisted it, 1 but as a force to be 
studied, as a mandate to be obeyed. 

In the year 1620 there were planted upon this continent two 
ideas irreconcilably hostile to each other. Ideas are the great war- 
riors of the world ; and a war that has no ideas behind it is simply 
brutality. The two ideas were landed, one at Plymouth Rock, 
from the Mayflower, and the other from a Dutch brig at Jamestown, 
Virginia. One was the old doctrine of Luther, that private judg- 
ment, in politics as well as religion, is the right and duty of every 
man ; and the other that capital should own labor, that the 
negro had no rights of manhood, and the white man might justly 
buy, own, and sell him and his offspring forever. Thus freedom 
and equality on the one hand, and, on the other, the slavery of one 
race, and the domination of the other, were the two germs planted 
on this continent." 

The speaker continued with a brief allusion to the course 
of the antislavery contest in the House and in the country, 
after which he remarked : — 

" This conflict of opinion was not merely one of sentimental 
feeling; it involved our wdiole political system; it gave rise to two 
radically different theories of the nature of our Government, the 
North believing and holding that we were a nation, the South in- 
sisting that we were only a confederation of sovereign States, and 
insisting that each State had the right, at its own discretion, to 
break the Union, and constantly threatening secession where the full 
rights of slavery were not acknowledged." ' l 

1 The reader may compare, on this point, the concluding portions of 
these remarks. 

2 The citations made from this speech are given here merely as exempli- 
fying a certain conception of the political history of the country since 1861, 
in connection with the possible recognition of a revolution. It is therefore 
not necessary to notice the character of any particular statement as to ear- 
lier history, either for truth or falsehood. 



468 THE QUESTION OF A REVOLUTION. 

Mr. Garfield's Position as a Revolutionist. 

It is not material here to discuss the position taken by 
the speaker in thus presenting the question of allegiance 
and of political duty as dependent on the moral question 
of the fitness or unfitness of negro slavery. 1 It is enough 
to remind the reader that the purpose of this essay has 
been to present the former question by itself, and as one 
which necessarily arises in every country, whatever dif- 
ferences in complexion or race may exist among its 
inhabitants and whatever may be its laws of personal 
condition. 

In the argument of the speaker on this occasion, how- 
ever, it was essential that he should thus combine these 
questions in determining the position of his fellow- citizens 
in his own and in other Northern States. For the re- 
mainder of his speech contains the proposition that all who 
in any part of the country held a different view from him- 
self and friends as to the powers of the general Govern- 
ment, more especially in reference to laws of personal 
condition, were in the position of rebels and traitors to- 
wards the actual administration controlled by his own 
party. 

And this proposition was presented as a consequence of 
events since 1861, whereby, according to his own state- 
ment, he with his political friends occupied the position of 
successful revolutionists, — a position enabling them to 

1 As a member of the Thirty-Ninth Congress, Mr. Garfield declined "a 
general discussion of the Reconstruction policy," 1st Sess. 89th Cong. Globe, 
2462, acquiescing, rather than agreeing, in the less heroic treatment approved 
by the majority. He favored a more stringent disfranchisement of partici- 
pants in the rebellion, and a provision for universal suffrage ; regretting 
" that the House could not have found the public virtue such that we might 
come out on the plain unanswerable proposition, that every adult intelli- 
gent citizen of the United States, unconvicted of crime, shall enjoy the right 
of suffrage." lb. 2462-2464. In the debates on Bill No. 1143, To provide, 
&c, Mr. Garfield advocated purely military rule, in the strongest terms, 2d 
Sess. 39th Congress, Globe, 1104, 1183,1320; agreeing with Mr. Stevens, 
Mr. Shellabarger, and their friends. Compare ante, pp. 225, 232, 246, 258. 



THEORY OF OUR NATIONAL EXISTENCE. 469 

Mr. Garfield's Position as a Revolutionist. 

charge with treason all who opposed their measures of 
government for being contrary to the written Constitution 
and the former conditions of political existence. 1 

That this was Mr. Garfield's position on this occasion 
appears from his drawing a parallel between the control of 
the general Government by those who had " adopted " and 
should thereafter hold the conquering "ideas," and the es- 
tablishment of a new dynasty in England at the revolution 
of 1688, and by his placing all his party opponents, whether 
personally connected with the Southern Confederacy or 
not, in the position of those who in that revolution suffered 
for treason in adhering to the Stuarts, and those who in 
the American revolution of 1776 were known as Loyalists 
or Tories, for their adhesion to the crown. 2 



1 In other words, Mr. Garfield claimed, in this instance, not that the 
supremacy of the general Government, in respect to all the States, wa8 
established by the war, but that a revolution had taken place giving that 
supremacy to the party professing certain political and moral " ideas." In 
his speech of Jan. 28, 1864 ( see note below), he had claimed rights founded 
on revolution, for the government, by whomsoever supported. 

2 This was not the first time Mr. Garfield had drawn these parallels, when 
attributing to the administration powers derived from a revolution. He 
advocated the Confiscation Acts, as justified by the customs of international 
law, as between alien enemies, and at the same time as municipal legislation 
against rebellious subjects. See remarks Jan. 28, 1864, 1st Sess. 38th 
Cong. Globe, 399-403. In this he was like many others. (Ante, p. 170.) But 
to sustain the last of these positions he reasoned from a supposed resem- 
blance between the situation of our government, and that of England in 
1688, and that of the colonies in the Revolution. I have myself (ante, p. 
223) indicated a resemblance between the position of Parliament in 1688, in 
reference to the succession to the throne, and that of Congress in reference 
to the reconstructed States ; but not intending to present either as revolu- 
tionary. I cited Macaulay's description of the conflict of opinion result- 
ing in harmony of action, as showing how studious were all who combined 
in calling a new occupant to the throne to avoid the position of revolution- 
ists. Mr. Garfield's comment on this action of Parliament is : " We are 
taught by this, that whenever a great people desire to do a thing which 
ought to be done, they will find the means of doing it." — Globe, 403. 
The inference from such arguments is that Mr. Garfield thought, at that 
time, that the rebellion could not be put down without usurpation on the 
part of the government, to be called " revolution " if successful. 



470 THE QUESTION OF A BEVOLUTION. 

Mr. Garfield's Position as a Revolutionist. 

Mr. Garfield proceeded to say : — 

" Thus the defence and aggrandizement of slavery, and the 
hatred of abolitionism, became not only the central idea of the 
Democratic party, but its master passion. . . . Over against this 
was arrayed the Republican party, asserting the broad doctrines of 
nationality and loyalty, insisting that no State had a right to secede, 
that secession was treason, and demanding that the institution of 
slavery should be restricted to the limits of the States where it 
already existed. But here and there many bolder and more radi- 
cal thinkers declared with . . . that there never could be union 
and peace, freedom and prosperity, until we were willing to see 
John Hancock under a black skin." 

As Mr. Garfield was arguing on the proposition that a 
revolution of some sort had taken place, it must be inferred 
that he either regarded these doctrines of the Eepublican 
party as revolutionary, or supposed that the adminis- 
tration under the nominal leadership of that party had fol- 
lowed the path of revolution under the control of those 
" bolder and more radical thinkers." 

In view of such an alternative the importance of resort- 
ing to the " war of ideas " is easily seen. It serves to 
exculpate everybody from responsibility for revolutionary 
action, and at the same time confirms the criminality of 
those who opposed the persons actually engaged in effect- 
ing the change. Another method of escaping the incon- 
veniences of the revolutionary position, which is equally 
reasonable and which to many people seems more devout, 
has been to refer to the will of God the responsibility for 
following their own judgments, — a method often illus- 
trated by Mr. Lincoln's expressions, though framed in the 
shape of a disclaimer of personal merit. 1 

1 In a letter to Colonel Hodges of Kentucky, dated April 4, 1864, after 
describing his position taken in an interview with Governor Bramlette and 
Senator Dixon, Mr. Lincoln wrote, " In telling this tale, I attempt no com- 
pliments to my own sagacity. I claim not to have controlled events, but 
confess that events have controlled me. Now, at the end of three years' 



THEORY OP OtTR NATIONAL EXISTENCE. 471 

Mr. Garfield's Position as a Revolutionist. 

Afterwards, in the closing portions of his remarks, Mr. 
Garfield said : — 

" Mr. Chairman, ought the Republican party to surrender its 
truncheon of command to the democracy ? The gentleman from 
Mississippi says, if this were England, the ministry would go out in 
twenty-four hours with such a state of things as we have here. 
Ah, yes ! that is an ordinary case of change of administration. But 
if this were England, what would she have done at the end of the 
war? England made one such mistake as the gentleman asks this 
country to make when she threw away the achievements of the 
grandest man that ever trod her highway of power. Oliver Crom- 
well had overturned the throne of despotic power, and had lifted 
his country to a place of masterful greatness among the nations of 
the earth ; and when, after his death, his great sceptre was trans- 
ferred to a weak though not unlineal hand, his country, in a moment 
of reactionary blindness, brought back the Stuarts. England did 
not recover from that folly until in 1689 the Prince of Orange drove 
from her island the last of that weak and wicked line. Did she 
afterward repeat the blunder ? 

" For more than fifty years pretenders were seeking the throne, 
and the wars . . . till the cause of the Stuarts was dead. 
They did not change as soon as the battle was over, and let the 
Stuarts come back to power. 

" And how was it in our own country, when our fathers had tri- 
umphed in the war of the Revolution ? When the victory was won, 
did they open their arms to the loyalists, as they called themselves, 
or tories, as our fathers called them ? Did they invite them back ? 
Not one. They confiscated their lands. The States passed decrees 
that no tory should live on our soil. And when they were too 
poor to take themselves away, our fathers, burdened as the young 

struggle, the nation's condition is not what either party or any man desired 
or expected. God alone can claim it. Whither it is tending seems plain. 
If God now wills the removal of a great wrong, and wills also that we of the 
North, as well as you of the South, shall pay fairly for our complicity in that 
wrong, impartial history will find therein new causes to attest and revere the 
justice and goodness of God." 

In presenting "Nationality and Emancipation" as ideas acting in war 
like actual persons, Dr. Draper quotes in support of his theory this declara- 
tion of Mr. Lincoln as " embodying a profound philosophical truth, the result 
of his meditations on the war." — The Civil War, etc. iii. 642. 



472 THE QUESTION OF A REVOLUTION". 

Mr. Garfield's Position as a Revolutionist. 

nation was with debt, raised the money to transport the Tories be- 
yond seas or across the Canada border. . . . 

" Now, I do not refer to this as an example which we ought to 
follow. 0, no. We live in a milder era." . . . 

After quoting a remark of John Adams, taken from a 
centennial address by Dr. Storrs : — 

" Now, Mr. Chairman, after all the fearful corruption of his time 
described by John Adams, our fathers never thought it necessary to 
call the tories back to take charge of their newly-gained liberties. 

" I will close by calling your attention again to the great problem 
before us. Over this vast horizon of interests, North and South, 
above all party prejudices and personal wrong-doing, above our 
battle hosts and our victorious cause, above all that we hoped for 
and won, or you hoped for and lost, is the grand onward movement 
of the republic. . . . 

"And until these great results are accomplished, it is not safe to 
take one step backward. 1 It is still more unsafe to trust interests of 
such measureless value in the hands of an organization whose mem- 
bers have never comprehended their epoch, have never been in 
sympathy with its great movements, who have resisted every step of 
it progress, and whose principal function has been 

' To lie in cold obstruction 
Across the pathway of the nation.' 

" It is most unsafe of all to trust that organization when, for the 
first time since the war, it puts forward for the first and second place 
of honor and command men who, in our days of greatest danger, 
esteemed party above country, and felt not one throb of patriotic 
ardor for the triumph of the imperilled Union, but from the begin- 
ning to the end hated the war and hated those who carried our eagles 
to victory. 2 

1 Record, 5186. Would it be wronging the speaker to suppose that he 
meant to imply that, even though the opposite party should prove to have a 
majority of the votes in the then ensuing elections, it would be the right or 
duty of the party representing his own ideas to retain the control of the ad- 
ministration by fraud or by force 1 

2 It may be only fair to Mr. Garfield to remind those who are not fami- 
liar with the ordinary course of debate in Congress that these remarks were 



THEORY OF OUR NATIONAL EXISTENCE. 473 

Theory of a revolutionary Change. 

" No, no, gentlemen ; our enlightened and patriotic people will not 
follow such leaders in their rearward march. Their myriad faces 
are turned the other way, and along their serried lines still rings the 
cheering cry, ' Forward ! ' till our great work is fully and worthily 
done." [Loud and continued applause.] 

That all of this school, at the present day, whether 
speaking as judges, jurists, statesmen, historians, or politi- 
cal philosophers, may justly be charged with resting their 
position, whether they acknowledge it or not, on a revo- 
lutionary change since 1861, is apparent from the fact 
that none have explained how a State's capacity to secede, 
or to carry on a war for that end, is less cognizable than 
before. 

So far as they have attempted this, it is by the assertion 
that the States in union are no longer sovereign in any 
degree; that is, that no State now holds even the "re- 
served " powers independently, but only as subordinate 
to a "National" (general) Government, which, as the 
highest visible representative of sovereignty, applies the 
Constitution as law acting upon people and States as its 
subjects. 1 

But nothing approaching to a historical demonstration 
of this has been attempted by anybody. Everything that 
has been proffered for such a demonstration is, really, 

made in the committee of the whole on the state of the Union, in which 
case no particular motion is under discussion, and the members have a prac- 
tically unlimited field for debate. This speech was also delivered when 
a presidential election was in prospect, at which period speakers make 
the most of their opportunity to promote party triumphs. The remarks of 
Mr. Garfield might pass, with those of many others at that time, for ordi- 
nary electioneering rhetoric, and would not have been noticed here but for 
his present prominence. An argument very similar to that made in this 
speech appears as the basis of an article by Senator G. F. Edmunds, in the 
North Amerijan Review, January, 1881, "Controlling Forces in American 
Politics," from which it might be gathered that the war had settled questions 
of revenue and economical policy in accordance with the " ideas " of a cer- 
tain party controlling the Administration, 
i Ante, pp. 341-347. 



474 THE QUESTION OF A REVOLUTION. 

Nation and Empire as antagonistic Terms. 

nothing beyond the older assertion of the superiority of 
the nation as a mass of individuals over the politically 
organized States, — a superiority resulting, practically, in 
the supremacy of the general Government. 

How this superiority of the nation is to be otherwise 
manifested is not told, unless by the use of certain adjec- 
tives, such as "imperial " as applied to the nation or the 
people as a mass. But by whom, or in what way, imperi- 
alism is to exhibit itself is left to the imagination. 

That the imagination of some writers has been strongly 
excited by the magnitude and somewhat sanguinary com- 
plexion of the hitherto novel experiences of this country 
during the war, may be inferred from the manner in which 
they have agreed in alluding to Rome, as an exemplar 
which this nation or people of the so-called United States 
is to resemble, to rival, and to surpass. 1 

As I have understood the modern use of the words in 
political science, " empire " and " nation " represent two 
essentially antagonistic forms of political existence. And, 
as I have read history, nothing could be more unlike than 
the conception of the Roman state, either as republic or as 
empire, and any situation hitherto occupied by the politi- 
cal personality known as the United States. 

The idea conveyed by the word " nation " is altogether 

1 Mr. Pomeroy, Const. Law, § 57: — " The people of the United States, — 
that new-born Nation destined . . . until, being made perfect by suffering, 
it shall wield an influence over humanity even surpassing that exerted by 
the deathless empire of Borne." See also in Mr. Jameson's Const. Conven- 
tion, § 33, an elaborate attempt to find a parallel in the history of Rome 
with the prospects of the United States. Dr. Draper, Civil War, etc. iii. 675 : 
— " The mind of the nation recognizes that it is the destined successor of 
Rome," and in Thoughts on the Future Civil Polity of America, p. 86 : — " No 
European nation can serve us as an example, for none has encountered a 
problem so complicated and so vast. The nearest approach to its solution 
was made by the Roman Empire." And ib. introd. 9. "An imperial power 
has come into existence before our eyes. . . . There is before it a career of 
unparalleled grandeur, a splendid history, to be wrought out on a greater 
scale than that of Rome." 



THEORY OF OUR NATIONAL EXISTENCE. 475 

Nation and Empire — how understood. 

a modern one, developed since the decline of the feudal 
system in Europe. The Romans knew nothing of " na- 
tions " in this sense of the word. The Roman people, 
populus Romanus, that is, those who held the privileges of 
the city of Rome, never called themselves a nation, in any 
sense. The same may be said of all those with whom 
they engaged in war or recognized as " friends of the 
Roman people." They were more or less definite collec- 
tions of various tribes, communities, or gentes, in the ori- 
ginal sense of the word gens, whose corporate existence 
generally depended on the continuance of some city (civi- 
tas~), in accordance with the ideas of all the Mediterranean 
States of antiquity ; as was the case with those known to 
the Romans as the Carthaginians (Cartaginienses'). 1 

The title " emperor " has, since the days of the first 
Ncipoleon, been sometimes used to designate the occupant 
of a position in the state not essentially different from that 
more commonly understood as the position of a king. 
But " empire " involves the idea of a political personality 
holding sovereignty, by right above law, which is exercised 
not merely over the people of a nation, but over other 
political personalities holding political power in a subject 
relation to such empire. Nationalism and Imperialism are 
therefore in opposition, as political principles. 2 

It would be interesting, at least, to know whether the 
writers referred to propose that the empire which they 
anticipate shall be exhibited in the subjection of the 
States, as political personalities, to the individuals elected 

1 For an essay of this sort there can be no better authority on this than 
that of Dr. Lieber, who was a leading advocate for the theory of nationalism 
as an idea controlling all modern political life. See fragments on " Na- 
tionalism," etc., in Vol. II. of his Miscellanies, pp. 222-242 ; and compare 
E. Mulford's The Nation, Ch. XVIII. 

2 "As despotic monarchs claiming the world for their realm, the Teutonic 
emperors strove from the first against three principles, over all of which 
their forerunners of the elder Rome had triumphed, — those of Nationality, 
Aristocracy, and Popular Freedom." — Bryce's Holy Roman Empire, 391. 



476 THE QUESTION OF A REVOLUTION. 

Question of the Place of Supreme Power. 

by the votes of their citizens, under existing forms of law 
to constitute the government at Washington. If any of 
them take the position of instructors in public law to the 
generation advancing to act in political life, they may 
justly be expected to declare themselves more explicitly. 

If, however, they look to the coming empire as some- 
thing to be exhibited in the political dominion of the 
United States over adjacent populations and countries 
now distinct and independent, it is a matter of prophetic 
vision which is not included in the scope of this essay. 1 

It is, however, true that empire, imperium, in the early 
sense of the Latin word, exists in every country of neces- 
sity, and its possessors must be known in each country 
wherein civil government is preferred to anarchy. It is 
not enough that the forma regiminis should be generally 
understood. To avoid civil dissensions, and fratricidal 
wars, it is even more essential that the forma imperii 
should be clearly recognized. 2 

As illustrating our own need of making this an object 
of general knowledge, I cite from remarks made by Mr. 
Garfield in the House, on an occasion not long before his 
nomination as candidate for the presidency. These will 
at the same time illustrate the practical political impor- 
tance of many of the other distinctions which have herein 
been pointed out. 

On the 27th June, 1879, during the extra session of the 
Fort} T -sixth Congress, the House, being in committee, 
was considering the bill making appropriation to pay the 
fees of United States marshals and their general depu- 

1 K. Hillebrand, Lectures on German Thought, p. 288 : — " The new Ger- 
man patriotism, which is not to be confounded with the old Prussian, was 
not, and is not naif. It is conscious ; it is intentional; it has a tincture of 
pedantry because it has been made by scholars and literary men." A paral- 
lel may suggest itself to the American reader. 

2 Ante, pp. 293, 302. 



THEORY OF OUR NATIONAL EXISTENCE. 477 

Mr. Garfield's Remarks, June 27, 1879. 

ties. 1 In the course of the debate, Mr. Garfield re- 
marked : 2 — . 

" The majority in this Congress 3 have adopted what I consider 
very extreme and dangerous opinions on certain important con- 
stitutional questions. They have not only drifted back to their 
old attitude on the subject of State sovereignty, but they have 
pushed that doctrine much further than most of their predecessors 
ever went before, except during the period immediately preceding 
the war." 

Mr. Garfield proceeded to cite, from the official reports 
of the debates, certain " declarations of seven distin- 
guished members [senators] of the present Congress," of 
which he said : — 

" They set forth what may be regarded as the doctrines of the 
Democracy as represented in this Capitol." 

These doctrines Mr. Garfield afterwards summarized as 
follows : — 

" They are in brief: first, there are no national elections ; 
second, the United States has no voters ; third, the States have the 
exclusive right to control all elections of members of Congress ; 
fourth, the Senators and Representatives in Congress are State 
officers, or, as they have been called during the present session, 
' embassadors ' or ' agents ' of the States ; fifth, the United States 
has no authority to keep the peace anywhere within a State, and, 
in fact, has no peace to keep ; sixth, the United States is not a 
nation endowed with sovereign jDower, but is a confederacy of 
States ; seventh, the States are sovereignties possessing inherent 
supreme powers. They are older than the Union, and, as inde- 
pendent sovereignties, the State governments created the Union, 
and determined and limited the powers of the general Govern- 
ment." 

1 H. R. No. 2382. The matter in controversy being the constitutionality 
of the provisions of the statutes relating to elections for Representatives, 
which have been mentioned, ante, p. 386. 

2 Congressional Record, 46th Congress, p. 2388. 

8 The majority at that time, both in the House and Senate, being with 
the opposite party. 



478 THE QUESTION OF A REVOLUTION. 

Mr. Garfield's Remarks, June 27, 1879. 

The speaker proceeded to indicate certain political 
measures of government which his opponents had advo- 
cated, and which he regarded as illustrating the practical 
bearing of these doctrines. 

Mr. Garfield afterwards stated " briefly the counter- 
propositions." To the reader of the preceding pages 
there will be nothing novel in these, and they are cited 
here mainly with reference to remarks of the same speaker 
on another occasion, to show his combination of the his- 
torical with the revolutionary basis. His propositions 
were : — 

" I affirm, first, that the Constitution of the United States was 
not created by the governments of the States, but was ordained and 
established by the only sovereign in this country, the common 
superior both of the States and the nation, — the people them- 
selves ; second, that the United States is a nation, having a govern- 
ment whose powers, as defined and limited by the Constitution, 
operate upon all the States in their corporate capacity, and upon 
all the people ; third, that by its legislative, executive, and judicial 
authority the nation is armed with adequate power to enforce all 
the provisions of the Constitution against all opposition of indi- 
viduals or of States, at all times, and all places within the Union." 

For the purpose of this essay it is immaterial whether 
the summary given by the speaker of the positions taken 
by his political opponents was just or unjust. Intrinsi- 
cally, as logical statements of doctrine, or historical de- 
scriptions of fact, that summary, and that afterwards given 
as " counter-propositions," are beneath criticism, from 
their vague, inconsistent, and misleading use of words. 
Like many other attempts in the same direction, they are 
not, either of them, more false than true, or more true 
than false. 

The speaker then followed with a brief historical state- 
ment, to use his own words, of " the constitutional his- 
tory of this country, or rather the history of sovereignty 
and government in this country," which he distinguished 
as " comprised in four sharply defined epochs." 



THEORY OF OUR NATIONAL EXISTENCE. 479 

Mr. Garfield's Remarks, June 27, 1879. 

Of the periods so discriminated, the second is the most 
material, because determining all those following. In 
describing this period, the theory of sovereignty in the 
nation as a mass, and the history of the inception of that 
sovereignty, is asserted in these words : — 

" Second, on the 4th day of July, 1776, the people of those col- 
onies, asserting their natural right as sovereigns, withdrew the 
sovereignty from the Crown of Great Britain, and reserved it to 
themselves. In so far as they delegated this national authority at 
all, they delegated it to the Continental Congress assembled at 
Philadelphia. That Congress, by general consent, became the 
supreme government of this country, — executive, judicial, and 
legislative in one. During the whole of its existence it wielded 
the supreme power of the new nation." 

In consequence of a similar exertion of sovereignt}' the 
people, so the speaker stated, established the government 
of the Confederation, and afterwards ordained and estab- 
lished the Constitution. 1 

Mr. Garfield, in order to sustain his position, commenced 
by taking the proper and only legitimate method to sus- 
tain his position, appealing, not to authorities, as a lawyer, 
but to facts, as an historian. This is in accordance with 
the method pursued in this treatise, and the only question 
is, here, whether the facts actually were as Mr. Garfield 
has represented them. He said : — 

" That no one may charge that I pervert history to sustain my 
own theories, I call attention to the fact that not one of the colo- 

1 As remarked hereinbefore (p. 323, note), with regard to language of Mr. 
Jameson, anybody who is endowed with the courage to present such a state- 
ment as history is impregnable. And yet Mr. Garfield, on this same occa- 
sion, referring to decisions of the Supreme Court, could say (Record, p. 2390), 
" Chief Justice Marshall, that great judge, who found the Constitution 
paper, and made it a power, who found it a skeleton, and clothed it with 
flesh and blood. By his wisdom and genius he made it the potent and bene- 
ficent instrument for the government of a great nation." Here is not only a 
recognition of the fetish, but also evidence that the manufacturers, like 
makers of idols of brass, wood, and stone, set their private mark on their 
handiwork. 



480 THE QUESTION OF A REVOLUTION. 

t. 

Mr. Garfield's Method of proving a Fact. 

nies declared itself free and independent. Neither Virginia nor 
Massachusetts threw off its allegiance to the British crown as a 
colony. This great declaration was made not even by all the col- 
onies as colonies, but it was made in the name and by the authority 
of ' all x the good people of the colonies ? as one people." 

These sentences present another illustration of that ten- 
dency, in all controversy on this subject, to state doctrine 
as if it were history, which has herein already been 
noticed. 2 Mr. Garfield's statement is, apparently, that 
the colonies, as so many distinct political corporeities, were 
not the actors in effecting what we call the independence 
of the United. States. His idea must be that the series 
of public acts which are recorded in every history of the 
United States as the acts of the pre-existing political 
organizations known as colonies, and afterwards as States, 
were not their acts at all ; but, in spite of appearances and 
the record, were performed by a totally different set of 
actors. 

As no proof of this is offered, the statement is merely 
that such is his doctrine; or that his doctrine requires 
such a view of history. Instead of showing a fact, he 
appeals to what, at the best, is only the record of a fact, 
and which is to be compared with other records. Like all 
of this school, he relies on the words of the Declaration, 
which, even if they could bear such an interpretation, are 
not of the slightest value as against the fact as it stands, 
— the fact that, except as the political people of each 
colony acted in their corporate capacity, there was no 
" good people of the colonies " to act at all. 3 

Mr. Garfield proceeded to fortify his position by citing 

1 The word " all " is introduced in the report of the debate by inad- 
vertence, it must be supposed either of the speaker or the reporter, as it is 
not so in the Declaration. 

2 Ante, p. 99. 

3 Compare the argument on the words in the Preamble to the Constitu- 
tion {ante, pp. 108-113) ; also Ch. IV., and pp. 337, 338. 



THEORY OF OUR NATIONAL EXISTENCE. 481 

Mr. Garfield's Appeal to other Opinions. 

four leading " names " as sustaining his own view of 
history. As to some of these he was, I think, misled, as 
so many others have been, by his own preconceptions of 
the events, and still more by the double meaning of the 
phrases by which the} r have been described. 

The first of these " names " or authorities, if they may 
be called such on a question of evidence, is an opinion 
which, as I read it, does not sustain that view of the facts. 
It is an opinion, indeed, which I claim as one agreeing with 
the view maintained in this essay, — that the States, being 
united, as matter of political fact, at the moment of their 
declaration of their independence, were, as united politi- 
cal personalities, — "the union," the sovereign, — the 
United States. 

Mr. Garfield said, — 

" Let me fortify this position by a great name, that will shine for- 
ever in the constellation of our southern sky, — the name of Charles 
Cotes worth Pinckney of South Carolina. He was a leading mem- 
ber of the Constitutional Convention of 1787, and also a member of 
the Convention of South Carolina which ratified the Constitution. 
In that latter convention the doctrine of State sovereignty found a 
few champions, and their attempt to prevent the adoption of the 
Constitution, because it established a supreme national govern- 
ment, 1 was rebuked by him in these memorable words." 

Pinckney's argument was founded on the language of 
the Declaration of Independence. The quotation given 
by Mr. Garfield is from the report in Eliott's Debates, as 
follows : — 

1 The speaker's method of demonstration agrees with that of Story and 
the whole school. On a question of fact, the opinion of one member of a 
State convention, supposed to support the speaker's view, is selected as forti- 
fying his position, and that of other members dismissed, because it does not. 
Mr. Garfield here also assumes that those who voted to adopt the Consti- 
tution understood it as he does, and as incompatible with the idea of federa- 
tion between sovereign States, — which is another practical begging the 
question, as well as an inference well-known to be contradicted by the his- 
tory of each State which adopted the Constitution. 



482 THE QUESTION OF A REVOLUTION. 

Mr. Garfield's Citation of Pinckney. 

" This admirable manifesto, which for importance of matter 
and elegance of composition stands unrivalled, sufficiently confutes 
the honorable gentleman's doctrine of the individual sovereignty of 
the several States. In that declaration the several States are not 
even enumerated, but after reciting in nervous language our 
right to independence and the tyranny which compelled us to assert 
it, the declaration is made in these words, — ' We, therefore, the 
representatives of the United States of America, in General Con- 
gress assembled, appealing to the Supreme Judge of the world for 
the rectitude of our intentions, do, in the name and by the authority 
of the good people of these colonies, solemnly publish and declare 
that these United Colonies are, and of right ought to be, Free and 
Independent States.' The separate independence and individual 1 
sovereignty of the several States were never thought of by the en- 
lightened band of patriots who framed this declaration. The several 
States are not even mentioned by name in any part of it, as if it was 
intended to impress this maxim on America. — that our freedom and 
independence arose from our union, and that without it we could 
neither be free nor independent. Let us, then, consider all attempts 
to weaken this union, by maintaining that each is separately and 
individually independent, as a species of political heresy, which 
can never benefit us, but may bring on us the most serious dis- 
tresses." 

Pinckney's interpretation of the language of the Decla- 
ration accords with the facts as they appear in history. 
" Our union," " this union " is here obviously equivalent 
to our States, being united. In the school of Story, or of 
his modern disciples, " union " is not the States united, nor 

1 Mr. G. T. Curtis, History of the Constitution (I. p. 455), says, "Pinckney 
entered the convention with a desire to adhere, if possible, to the charac- 
teristic principles of the Confederation." Mr. Curtis must suppose Pinck- 
ney to have at least recognized the States as personalities then holding the 
political power, even if he afterwards acquiesced in a consolidation under a 
constitution. The italics in the above citation of Pinckney's language are 
mine. As it stands in 4 Elliot's Debates, p. 801, the words FREE AND 
INDEPENDENT STATES are printed in capitals, and so stand as en- 
grossed in the original Declaration, signed Aug. 2, 1776 (Am. Archives V. 
p. 1598), — a circumstance which may be important to a school whose main 
argument is in writing " National " with a big N. 



THEORY OF OUR NATIONAL EXISTENCE. 483 

Other Names cited bj' Mr. Garfield. 

the United States, but only a name for something repre- 
sented solely by a National government. Their interpre- 
tation of the words " in the name of the good people of 
these colonies " does not accord with the facts. As has 
herein been said with reference to a similar argument from 
the language of the Constitution, as this is a question of 
history, the words of the Declaration are not of the slight- 
est value as compared with the undisputed facts. 1 
Mr. Garfield proceeded to say, — 

u For a further and equally powerful vindication of the same 
view, I refer to the Commentaries of Judge Story, Vol. I. p. 197. 

" In this same connection, and as a pertinent and effective re- 
sponse to the Democratic doctrines quoted in the outset, I quote 
from the first annual message of Abraham Lincoln, than whom no 
man of our generation studied the origin of the Union more pro- 
foundly. He said ' Our States,' " etc. 

As I have already herein remarked, more than once, I 
do not pretend to know what Judge Story understood by 
" the Union " and by " the people of the United States " ; 2 
and, whatever he may have understood by those terms, his 
opinion on a question of history is no more testimony as to 
the facts than is the opinion of anybody else. 

Mr. Lincoln's language I have already cited, 3 as indi- 
cating that he perhaps accepted that view of the facts which 
I have sustained as the true one. 

Mr. Garfield ended his climax of "names" as fol- 
lows : — 

" In further enforcement of the doctrine that the State govern- 
ments were not the sovereigns who created this Government, 4 I 

1 Ante, p. 130. 2 Ante, p. 109. 3 4„ tej p . 142. 

4 If it did not escape observation, by having become one of its common- 
places, it might be called one of the sophistries of this school, that they 
charge their opponents with attributing sovereignty to the State governments ; 
that is, — to the persons elected by the voters in each State, for fixed periods of 
time, to administer the executive, legislative, and judicial powers, as if they 
had no other idea of the State which they speak of as one of a confederation. 



484 THE QUESTION OF A REVOLUTION. 

James Wilson cited by Mr. Garfield. 

refer to the great decision of the Supreme Court of the United States 
in the case of Chisholm v. The State of Georgia, reported in 2 Dal- 
las, — a decision replete with the most enlightened national spirit, 
in which the court stamps with its indignant condemnation the 
notion that the State of Georgia was ' sovereign ' in any sense that 
made it independent of or superior to the nation. 

" Mr. Justice Wilson said, ' As a judge of this court, I know, 
and can decide upon the knowledge, 1 that the citizens of Georgia 
when they acted upon the large scale of the Union as a part of the 
" people of the United States " did not surrender the supreme or 
sovereign power to that State ; but, as to the purposes of the 
Union, retained it to themselves. As to the purposes of the Union, 
therefore, Georgia is not a sovereign State. . . . Whoever con- 
siders in a combined and comprehensive view the general texture of 
the Constitution will be satisfied that the people of the United 
States intended to form themselves into a nation for national pur- 
poses. They instituted for such purposes a National Government 
complete in all its parts, with powers legislative, executive, and 
judiciary, and in all those powers extending over the whole nation. 
Is it congruous that, with regard to such purposes, any man or body 
of men, any persons, natural or artificial, should be permitted to 
claim successfully an entire exemption from the jurisdiction of the 
National government ? ' " 

Thus far Mr. Garfield in his citation of this case, — the 
cheval de bataille of his school. Whether a decision ren- 

This is a misrepresentation of the State-rights doctrine, which recognized 
" the people " of each State, in some sense or other, distinguished from "the 
government," as the holder of supreme power. Compare ante, pp. 121, 
124, n. 

1 It would seem that Judge "Wilson thought himself qualified by his 
office to decide upon the historical question where that sovereignty was 
located which gave him his commission. This was evidently beyond the 
capacity of the judicial function, [Ante, p. 5.) As a citizen, he was 
obliged to recognize some sovereign before he could, as a judge, apply the 
Constitution as law. In the opinion here cited Wilson argues as if the posi- 
tion of a State of the United States were determinable from the Constitution 
itself, as law ; " taking a combined and comprehensive view," whatever that 
may be. But Mr. Garfield presents the same opinion as authority on a ques- 
tion of fact antedating both the Constitution and the Confederation, that is, 
whether the States held sovereignty in 1776. And on this question 
Wilson's testimony is against Mr. Garfield's view, as will appear from what 
follows, post, pp. 485-487. 



THEORY OF OUR NATIONAL EXISTENCE. 485 

Meaning of Judge Wilson's Statement. 

dered in a case in which the Supreme Court appears in the 
position of utter failure on the point of actual power can 
be called a " great decision " must be a matter of taste. 
The validity of the claims made for the opinions in this 
case, as judicial authority on a question of political fact, 
have already been considered. 1 

I have alreadjr argued that the opinions delivered in this 
case have no political value, because the decision of the 
court never had any effect on the matter in controversy. 2 
But, conceding all the prestige claimed for that of Judge 
Wilson, it is not at all clear from the passages cited that 
they indicate that view of history in support of which they 
were quoted by Mr. Garfield. It is not by any means ap- 
parent, in this opinion, that Judge Wilson did not recog- 
nize the citizens of Georgia — either the whole population 
or the voters — as constituting a sovereign " people," or a 
sovereign State. The passages cited may support the idea 
that they, as holders of all the powers of sovereignty in and 
for their State, when they adopted the Constitution, made 
a division of them, granting or delegating some to a State 
government, and reserving others, to be granted or delegated 
by them, separately, or simultaneously with a like grant 
from other States, to a Government for those purposes 
which Wilson here called " National." 

But if Judge Wilson was here cited for his " name " or 
reputation, and not merely as a judge on the bench, we 
may recall the fact that he has left other records of his 
opinions on this subject. 

Mr. G. T. Curtis devotes Chapter XIV. of Book III. of 

1 Ante, p. 137. Mr. Garfield's argument was made in the course of a heated 
debate, but it compares well, for intrinsic force, with any more deliberately 
composed by jurists of the same school. It equally justifies the remark of the 
English critic, that the argument rests " on the reputation of its advocates " 
(ante, p. 312, n. 3), and it equally illustrates how the reputation of its advo- 
cates rests upon their adoption of the argument. 

2 Compare ante, p. 138. 



486 THE QUESTION OF A DEVOLUTION. 

G. T. Curtis's View of Wilson's Theory. 

his work on the History of the Constitution to a sketch of 
Wilson and a statement of his views, and says of him, 
Vol. I. p. 463 : — 

" During the war he had always considered the States, with 
respect to that war, as forming one community 1 and he did not 
admit the idea that when the Colonies became independent of Great 
Britain, they became independent of each other. 2 From the Dec- 
laration of Independence he deduced the doctrine that the States 
by which that measure was adopted were independent in their 
confederated character and not as individual communities. This 
rather subtile distinction may seem now to have been of no practical 
moment, 3 since the confederation had actually united the States as 
such, rather than the inhabitants of the States." 

The remainder of Mr. Curtis's account of Wilson's views 
relates to his conception of the transaction called the adop- 
tion of the Constitution. 4 But if Mr. Curtis has here 
given a correct description of Wilson's view of the history 
of the States before that event, his name cannot be in- 
voked to support Mr. Garfield and the modern nationalists 
in their attribution of sovereignty to the mass of the in- 
habitants of the thirteen colonies at the Revolution. 

I think I may fairly claim that, on the contrary, Wilson's 
opinion supports the view presented in this essay. The 
weak point of his conception of the circumstances was 
one common to all the theorists of his time, 5 and is found 

1 Refers to Madison, Elliot, t. 78. 

2 Refers Ibid. 213. 

3 But compare ante, p. 128. 

. 4 Mr. Curtis has also given extracts from Wilson's speech on the adoption 
of the Constitution. They seem to agree with the view sustained by Mr. 
Curtis, of a perpetual grant by the States, to somebody, of a portion of their 
sovereignty. Compare ante, pp. 101, 102. 

5 Compare ante, pp. 122, 124, and see the citations from Chisholm v. Georgia, 
ante, p. 329, n. In a Centennial Address, July 4, 1876, at New York, the Eev. R. 
S. Storrs, Jr., said (p. 21), " There was certainly nothing of the ideal heroic 
among the ante-revolutionary people of this country. They did not live for 
sentiment or on it. They were not doctrinaires, though they are sometimes so 
represented." The orator might have said truly that even the leaders, 



THEORY OF OUJEt NATIONAL EXISTENCE. 437 

Substance of Mr. Garfield's Propositions. 

in this, — that he attributed the possession of sovereignty, 
a priori, to all the inhabitants of a certain district called 
" a State," though he was conscious, a posteriori, that is, by 
knowing what took place every day before his eyes, that 
only a portion of these, a comparatively few individuals, 
determined by laws derived from themselves corporately, 
actually, as voters, held all the political power that was to 
be held. The distinction, made by Wilson, of the States as 
holding sovereignty only in union is, in my opinion, that 
which gives the key to our political existence. But if 
sovereignty is attributed a priori to all the inhabitants of 
a State, it would be a " rather subtile distinction," as Mr. 
Curtis calls it : for there would be no reason, a priori, 
why the whole mass of the inhabitants of the country, in- 
stead of thirteen separate masses, should not be considered 
the possessor of sovereignty. 

To have any consistency as a statement of political doc- 
trine, the " counter propositions " offered 1 by Mr. Garfield 
must be understood to mean that " the Union," which 
is therein called permanently supreme, is not found in 

the so-called " fathers and founders," were not doctrinaires in reality, though 
they constantly so represented themselves, and really supposed that they 
were such. Compare ante, pp. 297, 314. 

1 On the 13th January, 1865, in a debate on a proposal for a constitutional 
amendment to prohibit slavery, Mr. Garfield had presented the same theory 
of sovereignty of the entire population as one mass, stating "that the mo- 
ment the revolutionary Congress assumed national prerogatives, and the 
people by their silence consented, that moment the people of the colonies con- 
stituted a nation and that revolutionary Congress was the authorized Gov- 
ernment of that nation. But the Declaration of Independence was 'by the 
authority of the good people' and hence it was their declaration. . . . The 
sovereignty of this people was first lodged in the revolutionary Congress, and 
it continued there until the 1st day of March, 1781, when they lodged it in 
the Articles of Confederation. They established then a confederacy properly 
so-called. ... On the 21st day of June, 1788, a new lodgment of thin 
sovereignty of the American people was made. It was then lodged in this 
Constitution," etc. Cong. Globe, 2d Sess. 38th Cong. p. 264. This argu- 
ment, or method, of knowing the will of a sovereign people from " their 
silence" resembles that from "acquiescence and obedience of the people," 
ante, pp. 316, 348, n. 



488 THE QUESTION OF A REVOLUTION. 

Conversation of Bismarck and Grant. 

the States in their voluntary union, but in a government 
regulated by its own interpretation of a written Constitu- 
tion, supposed to act of its own intrinsic authority as a law 
for States and natural persons, without reference to any 
political choice on the part of those States which are known 
in international relations as " the United States," 1 and 
that the only sovereign external to that Constitution is a 
hypothetical nation, whose will is known only by the 
action of the political party controlling the general Gov- 
ernment in accordance with this theory. 

For auy who have followed the argument of this essay 
it will be, I hope, superfluous to remark that I regard this 
statement of history as entirely baseless, and this statement 
of political doctrine as contradicted by the actual political 
experiences of the country ; unless what has happened 
since 1861 records a revolutionary change in the seat of 
sovereign power. 2 

But such a statement is only one illustration among 
many of the consequences which the theory attributed to 
Story and Webster, and now represented by Mr. Pomeroy 
and others, already cited, involves, and which are exposed 
when that theoiy is used to explain the events of the war 
and of the Reconstruction era. 

The following conversation is reported to have taken 
place between General Grant and Prince Bismarck, the 
Chancellor of the German Empire. 3 

1 That the States are so recognized, see ante, pp. 315-319. 

2 When Mr. Garfield had finished his remarks on this occasion, Mr. Frank 
H. Hurd, also a member from the State of Ohio, obtaining the floor, said, 
" My colleague has seen fit to enter upon a disquisition as to the nature of the 
Federal government and the relations of the States to that government under 
the Constitution which they created. Never, in all my studies of the political 
history of this country, never, in all my knowledge of the political debates 
which have taken place in the Congress of the United States, have I heard 
such views of consolidation advanced as have been suggested to-day by that 
gentleman." Cong. Record, 46th Cong. pp. 23-90. 

3 June, 1878, Around the World with General Grant, by J. R. Young, Vol. 
L p. 416. 



THEORY OF OUR NATIONAL EXISTENCE. 489 

Language of Grant and Bismarck. 

" ' Yes,' said the Prince, ' you had to save the Union, just as we 
had to save Germany.' 

" ' Not only save the Union, but destroy slavery,' answered the 
General. 

" ' I suppose, however, the Union was the real sentiment, the domi- 
nant sentiment?' said the Prince. 

" ' In the beginning, yes,' said the General ; ' but as soon as slavery 
fired upon the flag, it was felt — we all felt, even those who did not 
object to slaves — that slavery must be destroyed. We felt that it 
was a stain to the Union that men should be bought and sold like 
cattle.' " 

It is not an unreasonable inference from this dialogue 
that the questioner understood the subject somewhat better 
than did the respondent. But this does not appear so much 
from the former's mention of saving the Union, as being the 
main, object of the war, as from his supposing a parallel in 
it with the experiences of Germany. 

The phrases " to save Germany " and " to save the 
Union" are each figures of speech, and, as such, necessarily 
liable to mislead. The expression that our civil war was a 
war to preserve the Union is especially deceptive. It has 
been generally understood as meaning that the object of 
the war, as carried on under the leadership of the general 
Government, was to compel eleven States, as so many distinct 
political personalities, to remain united with other similar 
States, from which they desired to separate themselves. 

The object of this essay has been to show that this end 
was not the end needed, and, moreover, that, as matter of 
fact, it was not the result attained. 

The Union did not require saving, in that sense ; because, 
if saved in that sense, it was not a union at all. For, in 
that sense, it was subjugation of one set of States by an- 
other, and the possibility of any rebellion or treason on the 
part of anybody in those eleven States was excluded. 1 

The Union did not require saving, because the United 

1 Compare ante, p. 286, concluding chapter viii. 



490 THE QUESTION OF A REVOLUTION. 

Meaning of " Saving the Union." 

States were to be found in those States exclusively which 
continued in the former voluntary union, in which alone 
each and any or every State had been, or could continue 
to be, a State of the United States. 

- But the Union was to be saved in this sense, — that the 
sovereignty of the United States, that is, of the States con- 
tinuing in their voluntary union (not the authority of the 
general Government, except as their agent, still less of the 
Constitution as a self-existing law) was to be maintained 
throughout the whole domain wliich had ever been under 
that sovereignty, — a domain identical with the whole 
domain of the United States when those eleven States were 
participants of the same sovereignty. 1 

In the same sense, Germany had to be saved, or was 
saved, because a political personality, or aggregate of 
political personalities, at the head of which was the King 
of Prussia, maintained and extended their political au- 
thority thoughout the country which is now known as 
the German Empire ; not only over the domain which they 
had held severally before the war, but over the outlying 
domains of other political personalities, who were treated by 
them as having abdicated or dispossessed themselves of 
authority in those territories which, as sovereigns of a 
united Germany, the King of Prussia and his allies claimed 
as parts of one country under their dominion. 

Supposing this parallel in the mind of the German who 
had been the chief instrument in effecting this saving Ger- 
many by making Prussia or its hereditary dynasty the sove- 
reign of a Germany so saved, one may understand what. 
Bismarck meant by saying — " you had to save the Union" 
and " the Union was the dominant sentiment." 

Any European statesman would know that if the war in 

America was a civil war, — not an international war, nor 

yet a huge riot, — there was necessarily some actual political 

personality, who might be one natural person, or a collection 

1 Ante, p. 145. 



THEORY OF OUR NATIONAL EXISTENCE. 491 

Truth in Earl Russell's Expression. 

of natural persons holding sovereignty as a unit, who, as 
sovereign, was putting down the resistance of rebellious 
subjects, — not subject states, but subject natural persons. 

He would know, moreover, that the question whether 
slavery was good or bad, whether it was morally right or 
wrong " to buy and sell men like cattle, " had nothing 
to do with the questions of allegiance, treason, and rebellion. 

Earl Russell at the beginning of the war said, " The 
struggle is now felt to be one for independence on the part 
of the South, and for empire on the part of the North." 
This terse expression was essentially true. For the North- 
ern States, being " The United States," contended to main- 
tain their sovereignty, their imperium, in the original sense 
of the word, which applies as well to republics as to mon- 
archies. 1 The populations of the South contended to break 
from this imperium and to make for themselves a confede- 
racy of independent States. There would have been no 
mystery about this, if explained to any European publicist. 

Can it be inferred from the replies of the American Gen- 
eral, that, if " the flag" had been " fired upon " from the 
soil of a non-slave-holding State, he could not have told 
who or what directed the shot, or would have been at a loss 
to know what were his obligations as a soldier ? Can it be 
that he regarded himself as having been only the military 
chief of a crowd of citizens in arms, known simply as " we, " 
who, being individually opposed to slavery, were knocking 
others in the head because they differed from them about 
M buying and selling men like cattle " ? 

The man who sheds the blood of his fellow-men without 
the warrant of a political sovereign, simply to make others 
accept his own ideas of political or social justice, is, by the 
common jurisprudence of the world, an outlaw on land and 
a pirate by sea. 2 

1 Compare Dr. Maine, ante, p. 329. 

2 Yet upon this basis Mr. Garfield appeared to wish to rest, in his speech 



492 THE QUESTION OF A REVOLUTION. 

View in Stephen's Liberty, Equality, and Fraternity. 

If this was the true view of our case, the war was a huge 
riot, and Carlyle was justified in comparing it to the burn- 
ing out of a foul chimney. 

That the conflict of opinions in individual minds, as to the 
desirability of nationality or its opposites, or as to the moral 
aspect of slavery or its contraries, had nothing to do with 
the essential question of the right of the government at 
"Washington to resist secession as rebellion, — appears from 
the fact that their opinions on these points determined 
the sympathies of outside observers, who did not under- 
stand the real political situation, but who regarded our 
civil war as essentially an international war, — a war between 
two sets of states, equally capable of belligerency, because 
equally independent in respect to each other. 

It is highly probable that this has been the view gen- 
erally accepted in England, 1 and, though I do not feel cer- 
tain as to the author's own conception of our case, I refer 
to Sir James Fitzjames Stephen's " Liberty, Equality, and 
Fraternity " as showing the probability of this, in some pas- 
ages which I propose to cite, not for this only, but as also 
showing the true meaning of such phrases as " settled by the 
war" and ultima ratio regum, when used to explain a civil 
contest. 

In the fourth chapter, entitled " The Doctrine of Liberty 
in its Relations to Morals," this author (page 164 of the 
American reprint) observes : — 

" I have now said what I had to say on the action of law and of 
public opinion in regard to the encouragement of virtue and the pre- 
vention of vice. . . . 

June 27, 1879, notwithstanding his argument from history. He said, 
" But the truth requires me to say that there is one indisputable ground 
of agreement on which alone we can stand together, aud that is this : — the 
war for the Union was right, everlastingly right, and the war against the 
Union was wrong, everlastingly wrong." Cong. Eec. 46th Cong. p. 2390. 

1 How far Mr. G. T. Curtis may have succeeded in convincing his English 
friends of the rights of the matter by his theory of the divisibility of sove- 
reignty I do not pretend to judge. Compare ante, p. 299. 



THEOEY OF OUR NATIONAL EXISTENCE. 493 

Sir James Stephen on Force in National Relations. 



" Before taking leave of this part of the subject, I will make some 
observations upon a topic closely connected with it, — I mean the 
compulsion which is continually 'exercised by men over each other in 
the sternest of all possible shapes, — war and conquest. The effect 
of these processes upon all that interests men as such can hardly be 
overrated. War and conquest determine all the great questions of 
politics and exercise a nearly decisive influence in many cases upon 
religion and morals. We are what we are because Holland and 
England in the sixteenth century defeated Spain, and because Gus- 
tavus Adolphus and others successfully resisted the Empire in 
Northern Germany. Popular prejudice and true political insight 
agree in feeling and thinking that the moral and religious issues de- 
cided at Sadowa and Sedan were more important than the politi- 
cal issues. Here, then, we have compulsion on a gigantic scale 
producing vast and durable political, moral, and religious effects. 

" "When, however, we come to consider the relations of independ- 
ent nations to each other, a totally different set of considerations 
present themselves. Nations have no common superior. Their 
relations do not admit of being defined with the accuracy which the 
application of criminal law requires, nor, if they were so defined, 
would it be possible to specify or to inflict the sanctions of criminal 
law. The result of this is that nations always do consider for 
themselves in every particular case as it arises how their interests 
are to be asserted and protected, and whether or not at the expense of 
war. Even in the case of such references to arbitration as we have 
lately seen this is true. The arbitrators derive their whole author- 
ity from the will of the parties, and their award derives its authority 
from the same source. 

" Such being the relations between nation and nation, all his- 
tory, and especially all modern history, shows that what hap- 
pens in one nation affects other nations powerfully and directly. 
Indeed, the question what a nation is to be — how much or how 
little territory, how many or how few persons, it is to com- 
prehend — depends largely on the state of other nations. A 
territory more or less compact, inhabited by a population more 
or less homogeneous, is what we mean by a nation ; but how is 
it to be determined where the lines are to be drawn ? Who is 
to say whether the Rhine or the Vosges is to divide France from 



494 THE QUESTION OE A REVOLUTION. 

Sir James Stephen on Force in International "War. 

Germany ? — whether the English and the Welsh, the Scotch and 
the Irish, are or are not homogeneous enough to form one body 
politic? To these questions one answer only can be given, and 
that is, Force, in the widest sense of the word, must decide the 
question. By this I mean to include moral, intellectual, and physical 
force, and the power and attractiveness of the beliefs and ideas by 
which different nations are animated. All great wars are to a 
greater or less extent wars of principle and sentiment ; all great 
conquests embrace more or less of a moral element. Given such 
ideas as those of Protestants and Catholics in the sixteenth 
century suddenly seizing upon the nations of Europe, religious wars 
were inevitable ; 1 and in estimating their character we must take into 
account not merely the question, Who was on the offensive ? Who 
struck the first blow ? but much more the question, Which of the 
conflicting theories of life, which of the opposing principles brought 
into collision, was the noblest, the truest, the best fitted for the de- 
velopment of the powers of human nature, most in harmony with 
the facts which surround and constitute human life ? " 

I think it appears clearly from the above, as well as from 
the whole tenor of the author's remarks in this connection, 
that he is speaking of the moral justification of war properly 
so called, — ivar looked upon as an international relation. 
His reference is to wars carried on by one legitimate pos- 
sessor of political power against another legitimate pos- 
sessor of political power ; wars which may result in the 
subjugation or conquest of one of the parties belligerent by 
the other ; wars which may be followed by a change of 
dominion, a transfer of territory and population from the 
rule of one political sovereign to that of another. He is 
speaking of wars which, whatever may be the motives, 
desires, or hopes of the contending parties, are carried on 
without any question of the duty of the subjects or citizens 

1 These wars were none the less international wars, wars between polit- 
ical organizations or states of some kind. They were not wars between so 
many thousand Catholics and so many thousand Protestants. Their re- 
spective creeds did not determine the political obligations of the citizens or 
subjects of the different states engaged in these wars. 



THEORY OF OUR NATIONAL EXISTENCE. 495 

Sir James Stephen on the American Civil War. 

of each towards their respective sovereigns, or states, as the 
parties conducting the war ; of wars which, even if they can 
be called religious wars, or wars of sentiment, are wars from 
which all ideas of revolution, on the part of the prevailing 
party, and of rebellion, on the part of the defeated party, 
are absolutely excluded. 

He is speaking of force or compulsion ; and in this place 
he distinguishes it from the force or compulsion which he 
had been indicating as the foundation of law, — that force 
or compulsion which is the foundation, according to his 
belief, of each and every state, nation, or political com- 
munity, as distinguished from foundations in the consent 
of the governed or in Mr. Mill's theory of general utility. 1 

Immediately after the passage above quoted Sir James 
Stephen says : — 

"The most pointed and instructive modern illustration of this 
that can possibly be given is supplied by the great American civil 
war. Who, looking at the matter dispassionately, can fail to per- 
ceive the vanity and folly of the attempt to decide the question be- 
tween the North and the South by lawyers' metaphysics about the 
true nature of sovereignty or by conveyancing subtleties about the 
meaning of the Constitution and the principles by which written docu- 
ments ought to be interpreted ? You might as well try to infer the 
fortunes of a battle from the shape of the firearms. The true ques- 
tion is, What was the real gist and essence of the dispute ? What 
were the two sides really fighting for ? Various answers may be 
given to these questions which I need neither specify nor discuss, 
but the answer to them which happens to be preferred will, I think, 
settle conclusively the question which way the sympathies of the 
person who accepts that answer should go." 

From this paragraph I infer that, while the author 
probably sjonpathized with one or the other of those whom 
he indicates by the terms " the North " and " the South," 
he had accepted, without a doubt on that point, that theory 

1 Sir James Stephen's book is written avowedly in oppposition to Mill's 
Essay on Liberty. 



496 THE QUESTION OF A REVOLUTION. 

Application of Stephen's Doctrine. 

of the war which had always been and which still is ad- 
vanced by those whom he knows as " the South " ; that is, I 
infer that he regards the war as an intev-state war, a war 
carried on between two equally legitimate sovereigns. In 
this, he probably agrees with the vast majority of all Eng- 
lishmen who have noticed the subject, to whichever side 
their sympathies may have inclined. 1 

Taking this view, he is perfectly consistent in scouting all 
considerations of the meaning of the Constitution as law, 
or of its interpretation as a written document. To his 
mind, it could not be a law or a statute ; it was a treaty- 
compact only, and law so long as it was a treaty subsisting 
by the will of both parties ; but no longer. Those who, to 
his mind, made it had, to his mind, dissolved it. 

In this essay, I also have endeavored to show that the 
position of the parties to the war could not be settled by 
the Constitution, nor by any constitution, regarded as law. 
I have tried to show that the question — whether the 
Southern theory of our national existence was the true one, 
or some other view, inconsistent with the claim of secession 
and with the existence of such a war as Sir James supposed 
— is not determinable by "lawyers' metaphysics " about the 
divisibility of sovereignty and " conveyancing subtleties 
about the meaning of the Constitution," but is simply a 
historical question. 

That foreigners have never understood this is not their 

fault. The fault was with our fathers and " the founders " 

1 Tor illustration I refer to " A Letter to a Whig Member of the South- 
ern Independence Association " (an English affair), by Goldwin Smith. 
1864. Boston edition. Ticknor & Fields. In this, the author founded his 
argument entirely on the question of sympathy with or against slavery. He 
used the term "the Americans," throughout, as meaning only the Northern 
States : — " The Americans, 1 fully grant, were entitled to no sympathy while 
they remained accomplices with slavery," p. 24. Though, against Earl Rus- 
sell's expression (ante, p. 491), he asserted that the war was carried on, on 
the part of the North, to " maintain the existing Union," he, throughout, 
spoke of it as a "Federal" union, and repeatedly asserted that, but for the 
emancipation question, he was opposed to the war and favored a peaceable 
separation. lb. pp. 25, 27. Compare also, ante, pp. 56, 57. 



THEORY OF OUR NATIONAL EXISTENCE. 497 

Dependence of Liberty upon Power. 

arid with ourselves. Our fathers never knew, or never told, 
what they meant by "the United States," 1 and we have 
not, to this day, succeeded in making other people under- 
stand what we mean by the words. Perhaps we our- 
selves do not know. 

But the sentences which, in Stephen's treatise, follow 
those last cited have a more direct application to our cir- 
cumstances. Though they are simple common-sense, they, 
as declaration of principle on which all nations must rest, 
outweigh all " the glittering generalities " our fathers could 
pick up from the rubbish of the eighteenth-century philo- 
sophy. The author's conclusion is, — 

"It seems, then, that compulsion in its most formidable shape and 
on the most extensive scale — the compulsion of war — is one of 
the principles which lie at the root of national existence. It de- 
termines whether nations are to be what they are to be. It 
decides what men shall believe, how they shall live, in what mould 
their religion, law, morals, and the whole tone of their lives shall be 
cast. It is the ratio ultima not only of kings, but of human society 
in all its shapes. It determines precisely, for one thing, how much 
and how little individual liberty is to be left to exist at any specific 
time and place. 

" From this great truth flow many consequences, some of which I 
have already referred to. They may all be summed up in this 
one, that power precedes liberty — that liberty, from the very nature 
of things, is dependent upon power ; and that it is only under the 
protection of a powerful, well-organized, and intelligent government 
that any liberty can exist at all." 

A government in this sense — a government which is the 
cause and not the effect of liberty — is a government not 
under law, but above law ; a government which is not 
under a constitution, but above all constitution ; which 
makes or grants constitutions, so far there are any constitu- 
tions. 2 

1 Ante, p. 297. 

2 Constitutions, if they are to exist at all, must exist by the will and act of 
some pre-existing power-holders. To suppose them to originate in the will or 



498 THE QUESTION OF A REVOLUTION. 

The American Doctrine of Revolution. 

But conceptions such as these we have been brought up 
from our earliest childhood to detest and abhor. We have 
been taught to kick against the idea that, individually, we 
must be subject to somebody, and that our liberty is the re- 
sult of our receiving somebody's protection. 1 The contrar}'" 
conceptions are blazoned forth on every side, by " people 
who have the gift of using pathetic language," 2 from ever} r 
platform, pulpit, and newspaper in the land, and by none 
more than by those same writers and speakers who are now 
glorifying themselves on account of that exhibition of 
force which, they say, maintained the Union and fulfilled 
the promises of 1776, etc. 

In connection with the general question of political al- 
legiance, the American 3 doctrine of a right of revolution 
cannot pass altogether unnoticed. The practical import- 
ance of considering it may appear from a debate which 
arose in the House of Representatives, during the first 
session of the Thirty-Eighth Congress, on a motion for the 
expulsion of Mr. Long, one of the members from the State 
of Ohio, on account of remarks made on the 8th April, 
1864, in favor of discontinuing the war. 4 Mr. Garfield, at 

authority of the governed is to suppose a contradiction. But the oldest and, 
in a sense, the most conservative newspaper in Boston, April 13, 1881, scouted 
the idea that a constitution for the Russian Empire could originate in the act 
of the autocratic head, without the co-operation of " the numerical majority." 

1 See the theories of the several justices in Chisholm v. Georgia, and 
particularly the opinion by Wilson, J., full of such propositions as, " The only 
reason, I believe, why a freeman is bound by human laws is that he binds 
himself." 2 Dallas, p. 456. Also citation from Jay's Opinion, ante, p. 329. 

2 Stephen's " Liberty," etc., p. 175. 

3 One may be justified in this designation from the fact that there is 
probably no other country in the world where resistance to its own authority 
would be spoken of by any branch of an existing government as a right, least 
of all by the judipiary. Compare ante, p. 189, n. But, whatever the doc- 
trine may be, it does not as yet correspond to that which is known to the 
aspirations of certain political theorists, in France especially, as " the Revo- 
lution," meaning something permanently continuing, whicli shall, in the 
future, realize the sovereignty of the people by abolishing all existing forms 
of government, even such as are now known as republican. 

4 38th Cong. 1st Sess. Cong. Globe, 1499. 



THEORY OF OUR NATIONAL EXISTENCE. 499 

Mr. Garfield on the Right of Revolution. 

that time a member from the same State, took the leading 
part against Mr. Long, and in the course of the debate 
said : 1 — 

" But the gentleman takes higher ground, and in that I agree 
with him, namely, that five millions or eight millions of people pos- 
sess the right of revolution. Grant it ; we agree there. If fifty 
men can make a revolution successful, they have the right of revo- 
lution. If one State wishes to break its connection with the Fed- 
eral Government and does it by force maintaining itself, it is an 
independent State. If the eleven Southern States are determined to 
secede, to revolutionize, and can maintain that revolution by force, 
they have the revolutionary right to do so. Grant it, I stand on 
that platform with the gentleman. 

" And now the question comes, Is it our constitutional duty to 
let them do it ? " 

After some remarks, picturing the consequences to be 
anticipated from recognizing the separation of the Northern 
and Southern States, and drawing a parallel between co- 
ercion exercised to maintain them in union, and coercion 
as an ordinary incident of all municipal laws, criminal or 
civil, 2 Mr. Garfield said : — 

" I said a little while ago that I accepted the proposition of the 
gentleman, that the rebels had the right of revolution ; and the de- 
cisive issue between us and the rebellion is whether they shall revo- 
lutionize and destroy or we shall subdue and preserve. 

" We take the latter ground. We take the common weapons of 
war to meet them ; and if these be not sufficient, I would take any 
element which will overwhelm and destroy ; I would sacrifice the 
dearest and best beloved ; I would take all the old sanctions of law 
and the Constitution and fling them to the winds, if necessary, 
rather than let the nation be torn in pieces and its people destroyed 
with endless ruin." 

Here, Mr. Garfield, while recognizing a right of revolu- 
tion, in some sense of the word " right," avoided the natural 

1 38th Cong. 1st Sess. Cong. Globe, 1503. 2 To be cited post, p. 502. 



500 THE QUESTION OF A REVOLUTION. 

On Revolution as a Eight. 

conclusion that it should be accepted as such, or that he, 
at least, would acquiesce in the desired political change. 
For he claimed an antagonistic right to resist it, — not a 
legal right to resist it, but a counter-revolutionary right. 1 
In this he appeared to abandon all question of duty to a 
recognized political superior and to make the question of 
political expediency between himself and anybody else 
depend simply on the issue of brute force. 

However absurd, logically speaking, the position may 
seem that one may have a right which it is the duty of some 
one else to resist, Mr. Garfield's position in this debate 
illustrates the truth that it is the fact of success only that 
makes revolution a right in any sense worth noticing. 
He proposed to treat any resistance to the Government, 
whether it came from few or from many, as rebellion, as 
long as it was unsuccessful, and to recognize it as rightful 
if that resistance could not be put down. 

But there are very few, probably, among those who 
speak of '" the right of revolution " who would be equally 
candid. It is more common to conceive of revolution as a 
right attributable only to the entire population of some 
more or less considerable territory, and as one which, if 
claimed by such an entire population, or by some indefin- 
itely large majority in such population, ought, in view of 
American public law at least, to be recognized at once, 
without resistance on the part of any previous possessor of 
political power over the same territory. 2 

1 Compare Jameson's Const. Conv. § 111, on " counter-revolutionary 
acts." 

2 At the outbreak of the secession movement, this notion of a right of 
revolution had more or less effect in disturbing the judgments of people at 
the North without reference to their sympathy with or opposition to the 
State rights theory. In the debate on Mr. Long's expulsion, Mr. S. S. Cox, 
a representative from Ohio, defending Mr. Long, April 8, 1864, caused to be 
read, from the clerk's desk, various extracts from the New York Tribune in 
the years 1860 and 1861, with others from speeches by Mr. Wade, of Ohio, 
in the 34th Congress, and by Mr. Lincoln, in 1848, all asserting revolution as 



THEORY OF OUR NATIONAL EXISTENCE. 501 

Theory of the American Revolution. 

To this conception of revolution as a right may be at- 
tributed the origin of that hypothesis which ascribes the 
possession of sovereignty, at the moment of the Revolu- 
tion of 1776, to the entire mass of the population as dis- 
tinguished from the States or from the political peoples of 
the States, either united or several. 

The argument seems to be that any transfer of sov- 
ereignty which we may rightly call a revolution must not 
be regarded simply as historical fact, but as a transaction 
resting on some law or principle of political morality ; that 
such a transfer by revolution is so sanctioned only as the right 
or faculty of the entire mass of the population without refer- 
ence to any pre-existing political organization ; and that as 
the transaction occurring in 1776 has been accepted as revo- 
lution, it must now be recognized by everybody as the act 
of the entire mass of the papulation, in distinction from 
the act of the States or pre-existing colonies. 1 

But the truth is that this American Revolution of 1776 
has its place in history simply as a fact, without any refer- 
ence to legal or ethical justification. It is one fact in a 
class of facts which includes many others which are known 
in history as usurpations. Whether called revolutions or 
usurpations, they are equally, in their essence, only changes 
in the location of sovereign power, which as facts are rec- 

a right on which secession might be recognized. (Globe, 15,08.) Others, 
equally opposed to the secession of the slave States, had professed readiness 
to recognize it as revolution if the slave population could be shown to have 
united in the movement. 

1 Thus Story, Comra, § 211, says of the Declaration, " It was an act of 
original inherent sovereignty by the people themselves, resulting from their 
right to change the form of government and to institute a new one whenever 
necessary for their safety and happiness." Adding, " So the Declaration 
of Independence treats it," which sentence furnishes another illustration of 
putting the cart before the horse. (Ante, p. 96, n.) The same idea is indeed the 
basis of all Story's sophistical misrepresentation of history, which, as being 
such, was fully exposed by Judge Upshur in his review published in 1810 ; 
though Upshur himself was equally in error by regarding the States as each 
sovereign independently of their union. 



502 THE QUESTION OF A EEVOLTJTICXN". 

Jlr. Garfield's View of Coercion. 

ognized without reference to the ethical or legal relations 
of those who effected them. To speak of "a right of revo- 
lution " as if it could be right existing in a legal relation, 
is a contradiction in terms ; and no ethical justification for 
attempting a revolution can have anything to do with the 
question whether the attempt shall result in an unsuccess- 
ful rebellion or in a successful revolution. 

It was therefore natural enough that Mr. Garfield in 
this debate should not adhere very closely to this revolu- 
tionary position, but should in some places easily slip back 
to the lawyer's point of view. 

Referring again to Mr. Long's argument, Mr. Garfield 
said : 1 — 

" The gentleman has told us that there is no such thing as coer- 
cion justifiable under the Constitution. I ask him for a moment to 
reflect that no statute ever was enforced without coercion. It is 
the basis of every law in the universe, — God's law as well as 
man's law. A law is no law without coercion behind it." 

The speaker proceeded to draw a parallel between coer- 
cion in cases of ordinary execution under civil and crim- 
inal law, and coercion in the action of the Government 
against the eleven States, as such. 

But for his argument on this occasion, as against Mr. 
Long, Mr. Garfield should have explained whether the co- 
ercion he was justifying was the coercion of revolutionary 
force or that of municipal law. 

I have already cited some passages from Sir James 
Stephen's work, to the effect that coercion in some form 
is the foundation not only of law but of liberty. 2 After 
the sentences last quoted, that author proceeds to say : — 

" I will not insist further upon this, but I would point out that the 
manner in which war is conducted is worthy of much greater atten- 

i 1st Sess. 38th Cong. Globe, 1504 ; ante, p. 499. 
2 Ante, p. 497. 



THEORY OF OUR NATIONAL EXISTENCE. 503 

Distinction of Coercion in War and under Law. 

tion than it has received, as illustrating the character and limits of 
the struggles of civil life. The points to' be noticed are two. In 
the first place, in war, defeat after fair fight inflicts no disgrace, and 
the cheerful acceptance of defeat is in many cases the part of honorable 
and high-spirited men. Not many years ago an account was published 
of a great review held by the Emperor of Russia. Schamyl, who 
had so long defied him in the Caucasus, was said to have come for- 
ward and declared that as the Emperor had had no more obstinate 
enemy, so he should now have no more faithful subject than him- 
self; that he saw that it was God's will that Russia should rule, and 
that he knew how to submit himself to the will of God. If the 
story was true and the speech sincere, it was the speech of a wise, 
good, and brave man." 

No argument is needed to show that the coercion of 
municipal law has a very different character for those who 
are subjected to it, since it involves more or less of dis- 
grace by involving more or less the idea of punish- 
ment. 

Mr. Long and many others in the Northern States, un- 
doubtedly, as well as the people of the Southern States, 
regarded the action of the Government simply as the coer- 
cion of war, — of war between two distinct political per- 
sonalities, — whether they thought it coercion under the 
Constitution or outside of it. From their point of view the 
question always was whether the prospect of military suc- 
cess, and the probable consequences of such success, if 
attained, rendered the continuation of the war expedient 
for the people of the Northern States. 

It is one of the unfortunate accidents of human exist- 
ence that, while revolutions must be expected to occur, 
the coercion which they involve partakes of the character 
both of the coercion of war and the coercion of municipal 
law. Logically, it seems absurd that those who resist 
political change for being rebellion or usurpation should 
themselves suffer as rebels when the rebellion or usurpation 
results in a successful revolution. But, as no revolution 



504 THE QUESTION OF A REVOLUTION. 

Distinction in the Nature of Coercion. 

can take place without the question of success being for 
some time in doubt, the practical consequence is that the 
coercion exercised in achieving it has more or less of the 
character of punishment. 1 

' Mr. Garfield may at times have presented the action of 
the Government, in reference to the eleven States at least, 
if not in reference to the people of the whole country, as 
being revolutionary coercion analogous to the coercion of 
war ; but the great bulk of those who sustained the Gov- 
ernment during the war may be assumed to have, thus far, 
regarded that action as the enforcement of pre-existing 
political authority against a rebellion. 

But the difficulty which all such persons experienced 
throughout the discussions caused by the war was to pre- 
sent this as founded on a consistent political basis. 

As between himself and his opponents on this particu- 
lar occasion, Mr. Garfield's argument, in drawing a par- 
allel with coercion under municipal law, was simply 
begging the question, though neither side appeared to be 
aware of it. The first thing which should have been set- 
tled between them was what sort of coercion was the 
coercion to which they severally referred. 

That the participants in this debate should have failed 
to notice this in their mutual recriminations is mainly at- 

1 A resolution of the Virginia Legislature of Dec. 17, 1782, which Mr. 
Garfield recited in his remarks on confiscation, Jan. 28, 1864, 1st Sess. 38th 
Cong. Globe, 403, shows that our revolutionary predecessors were quite as 
much embarrassed in reconciling law and revolution. As given in the Jour- 
nal of the House of Delegates, the resolution reads : — "That the laws of 
this State, confiscating property held under the laws of the former govern- 
ment (which have been dissolved and made void), by those who have never 
been admitted into the present social compact, being founded on legal prin- 
ciples, were strongly dictated by that principle of common justice, which 
demands that, if virtuous citizens, in defence of their natural and consti- 
tutional rights, risk their life, liberty, and property on their success, the 
vicious citizens who side with tyranny and oppression or who cloak them- 
selves under the mask of neutrality, should at least hazard their property, 
and not enjoy the benefits procured by the labors and dangers of those whose 
destructions they wished." 



THEORY OF OUR NATIONAL EXISTENCE. 505 

Importance of the Distinction. 

'tribu table to their introduction of this entirely irrelevant 
and logically absurd theory of a right of revolution. 

Any new possession of sovereignty being once established 
as fact, it is equally necessary, as in the case of a conquest 
in war, for everybody to make the best of it. Viewed 
as matter of strict justice, there can be no more disgrace 
under the coercion of revolution than under the coercion 
of war, though the former will have more or less of the 
character of punitory law, according to the nature of the 
revolution and the temper of the times. 

If the result of the civil war has been the establishment 
of a national government upon a new location of sover- 
eign power, it is the part of wisdom as well as of necessity 
to accept the fact as such, whatever views one may have 
had of one's political duty before the war. Even those 
who would resist it as usurpation may accept its success 
as indicating that it has been the will of God or decree of 
Providence, as they might accept the result of an inter- 
national conquest. Those who, whether by revolution or 
usurpation, may have acquired power unknown under the 
former constitution will have the political right to punish 
any who may resist it. Those who, while viewing it as 
their own act in revolution or usurpation, justify them- 
selves to themselves by attributing the result to divine in- 
terposition — if any such there have been — must take the 
chance, under the verdict of history, of a record either as 
knaves or as fanatics. 

But if the idea of a change in the location of supreme 
power by a revolution is rejected, and if it is assumed 
that the position of each person living within the United 
States, in respect to political allegiance, is the same now 
as it was before, it is of the essence of the whole question to 
know whether the coercion which Mr. Garfield was de- 
fending was the coercion of war or that of municipal law. 
If it was the former, the right of secession, or, rather, the 



506 THE QUESTION OF A REVOLUTION. 

Revolution as Change of Municipal Law. 

State's capacity to wage war for that end, or any end, is 
established by the war itself. 1 If it was the coercion of 
municipal law, the duty of the citizen is no clearer now 
than it was before ; because nobody has yet explained how 
the acts of the Government can be reconciled with that 
supposition. 

Very probably Mr. Garfield and others would say that 
the revolution they speak of consists in the changes in the 
municipal law itself under the will of the pre-existing sov- 
ereign, — changes of law in respect to social and economical 
relations, without any change in the location of supreme 
legislative power. This may also be the prevailing idea 
in those utterances from judicial, legislative, and executive 
sources which have hereinbefore been cited, so far as they 
recognize some change in constitutional law as a result of 
the war, without also recognizing a revolution in the or- 
dinary sense. 

But it is absurd, or another of those contradictions 
which have been so plentiful from the beginning of the 
Rebellion, 2 to refer to the coercion of war changes in mu- 
nicipal law ; for these can be called revolutions, social and 
economical revolutions, only by a figure of speech. It is 
a contradiction to call citizens who are opposed to such 
changes rebels and traitors, and still more to liken them to 
public enemies vanquished in war. 

There may perhaps be a certain inability with some per- 
sons to recognize a revolution in any other sense than this, 
that is, that of a change of municipal law. For according to 
the common theory of popular sovereignty, the sovereignty 
of the nation as a mass, it might be argued that such sov- 
ereignty exists of necessity, and that, therefore, there never 
can be a revolution in the sense of a change in the loca- 
tion of sovereignty. 

1 Compare the close of ch. vi., ante, pp. 285, 286. 

2 Compare ante, p. 90, in the close of ch. ii. 



THEORY OF OUR NATIONAL EXISTENCE. 507 

Mr. Garfield's View of Sovereignty. 

As incidental to this conception of revolutions in general, 
and as showing the fundamental idea in the philosophy of 
a certain school, 1 a passage may be recited from Mr. Gar- 
field's speech of July 27, 1879. 

In continuation of the remarks cited already on page 
499, Mr. Garfield said : — 

" Mr. Chairman, the dogma of State sovereignty, which has 
reawakened to such vigorous life in this chamber, has borne 
such bitter fruits and entailed such suffering upon our people that 
it deserves more particular notice. 

" It should be noticed that the word ' sovereignty ' cannot be 
fitly applied to any government in this country. It is not found in 
our Constitution. It is a feudal word, born of the despotism of the 
Middle Ages and was unknown even in ' Imperial Rome.' 2 A sover- 
eign is a person, a prince, who has subjects that owe him allegi- 
ance. There is no one paramount sovereign in the United States. 
There is no person here who holds any title or authority whatever, 
except the official authority given him by law. 8 Our only sovereign 

1 By school, I do not mean a political party. The people of this country, 
of all political factions, have always hugged to their bosoms these delusions 
as to the conditions of their political existence. It was for this reason that 
the opponents of Mr. Garfield in the House were unable to reply effectively 
to his arguments founded on fallacies which they equally accepted. Among 
similar denials of the necessity of recognizing a supreme or sovereign author- 
ity in some living person or persons, one is found in an Address, July 4, 1831, 
by J. Q. Adams, to which Story refers with approval, Comm. § 208. 

2 A similar statement had appeared in Mr. Motley's letter to the London 
Times, 1861 (Rebellion Record, Vol. I. Documents, p. 211), which is one of 
the most extravagant assertions of the theory of sovereignty held by the 
people as a mass. The same had been said by Mr. Webster in his speech of 
Feb. 16, 1833, in reply to Mr. Calhoun. (Webster's Works, iii. 469.) It would 
be singular if Mr. Garfield or Mr. Webster or Mr. Motley really meant that the 
relation of sovereign and subject, as between two human beings, was never 
known before the Middle Ages. The proper distinction is merely that ter- 
ritorial sovereignty — dominion in relation to a certain limited portion of 
territory — became the foundation of feudalism, in distinction from that impe- 
rium over natural persons, without reference to territory or residence, which 
had been the ancient basis of public law, and which was continued by the 
theory of the middle-age German Empire. This is fully considered in 
Maine's Ancient Law, pp. 99-104. See also Bryce's Holy Roman Empire, 123. 

3 As the speaker on another occasion (ante, p. 502) had maintained that 
coercion must exist if law is to exist, he must be of that school which im- 



508 THE QUESTION OF A REVOLUTION. 

The States distinguished from Corporations. 

is the whole people. To talk about the ' inherent sovereignty ' of 
a corporation is to talk nonsense ; and we ought to reform our 
habit of speech on that subject." 

The fundamental fallacy is here exhibited in compar- 
ing political personalities to corporations under municipal 
law, that is, to artificial persons, such as are made and 
continue to exist by the legislative will of a visible politi- 
cal superior who is not an artificial person. The historical 
fact is that the States were not " corporations " in that 
sense ; not artificial persons made and continuing to exist 
by the legislative will of a political superior, visible or in- 
visible. They came into being, as States, by the transmis- 
sion of the imperium or sovereignty from the crown and 
Parliament of Great Britain to them-in union ; they, sever- 
ally, consisting of so many actual human beings — the 
electors or voters acting through agencies called govern- 
ments and thereby determining, each for itself, its several 
existence as one of the United States, sovereign in their 
voluntary union. 1 

They were political personalities which had originated 
as corporate bodies under special legislative grants, — 
charters or patents — or permissive sanction, resting on the 
prerogative of a recognized political sovereign, determin- 
ing the natural persons who should constitute such corpor- 
ations. In the Revolution these corporate bodies as political 
personalities assumed and maintained by force, the force 
of war, the possession of sovereignty, which in and by that 
force was transmitted to them, in union, from its former 
holders. 

In the history of this fact the Declaration of Independence 
is simply a record, — a fragment of the journal of the Con- 

agines laws as having coercive force in themselves, — the theory of the " sov- 
ereignty of law." 

1 Compare the rejection of this distinction by Professor Jameson, ante, 
p. 127, n. 



THEORY OF OUR NATIONAL EXISTENCE. 509 

Value of the Declaration of Independence. 

gress composed of the delegates of the United Colonies at 
that moment, the whole being part of a much more ex- 
panded historical record. To attribute to it a legislative 
force, determining the political value of the facts which it 
records, is absurd. 1 Its distinctive importance in the 
whole record is in the fact that it has been accepted by all 
the world as marking an instant of time, — an instant for 
the transmission of pre-existing sovereignty from one holder 
to another. 

The battles of the Revolution, making possible the estab- 
lishment of diplomatic relations between an earlier holder 
of sovereignty in and for the colonies and a new holder of 
the same sovereignty in and for the States united, were 
the essential facts which gave all the distinctive importance 
to this record. What gave meaning to the Declaration was 
not any motive, principle or theory, expressed or not, but 
a purpose, — the purpose to take independent political 
power by force, by right above law, because by force above 
law. What gave it importance was the fact that this pur- 
pose was sustained by force which proved adequate to the 
occasion. 

The question for all the world at that moment was, 
Who is the political personality (or, who are the political 
personalities) capable of holding sovereignty as a unit, that 
is, independent political power sustained by force, — who 
has (or who have) thus expressed this purpose and actu- 
ally maintained it? 

This Declaration and every other part of the historical 

1 To the disciples of this school, the Declaration becomes another fetish ; 
more powerful, as such, than the Constitution itself. In connection with 
some sentences already cited from Cooley's Constitutional Limitations (ante, 
p. 125, n.), the author says, "The Declaration of Independence made them 
sovereign and independent States by altogether abolishing the foreign juris- 
diction and substituting a national government of their own creation." See 
also R. Frothingham's Rise of the Republic, ch. xi., where the document is 
spoken of as if it worked of itself. Taine has said somewhere, " Under 
the shell there was an animal, and behind the document there was a man." 



510 THE QUESTION OF A REVOLUTION. 

Revolution — the Act of the Colonies. 

record indicate that the colonies, as thirteen distinct 
political personalities in union, said, at this time, that they 
could, in union, become free and independent, and that 
they meant to be free and independent States in union ; 
and, as soon as the former possessor of sovereignty in and 
for these colonies, after sufficient trial or test, recognized 
that this was a fact and not merely a purpose, there was 
an end of the matter, as far as that former possessor 
of sovereignty in and for those colonies was concerned. 

And this being the fact of the matter, as far as we too 
are concerned, it is no matter to us what " the people " 
or " the nation," in the sense of all the inhabitants of all 
the colonies taken as a mass, thought on the subject. We 
know perfectly well that, taken as such mass, they did not 
do anything about it. 1 It is a fact, about which nobody 
has ever disputed in the least, that nobody, individually as a 
human being, had at that time, or ever since has had, the op- 
tion to say whether he or she would or would not recognize 
this as the fact of the matter. Nobody individually has 
had the option to like it or not to like it. Or, the only 
option has been to like it, and stay, or not to like it, and 
quit. To recall this to our minds, the allusions to " the 
Loyalists " and " the Tories," in Mr. Garfield's speech of 
Aug. 4, 1876, are sufficient. 2 

It is a fact, about which nobody disputes, that society 
and government were never, for an instant, broken up or 
discontinued. It is as certain as anything in history can 
be that nobody, for an instant, was released from political 
and civil subjection to political and civil supremacy, or was 
for a moment in a situation to act like an independent 
sovereign, or do as he or she pleased without regard to 
any political authority. The laws which had rested on 

1 Ante, p. 112. 

2 How Mr. Garfield would apply in such cases the doctrine of a right of 
private judgment in matters political, or, indeed, on what authority he at- 
tributed that doctrine to Luther (ante, p. 467), he has not shown. 



THEORY OF OUR NATIONAL EXISTENCE. 511 

Colonies passing into States united. 

the authority of the colonies, maintained by their polit- 
ical relation to the crown and parliament of Great Britain, 
continued to rest on the authority of the States, main- 
tained by their mutual political relation (as corporations, 
if anybody chooses to call them such) in their voluntary 
union, together possessing sovereignty as a unit. It is as 
certain as anything can be certain from history that the 
people or nation, as a mass, did not do anything to make 
this state of things or to unmake it. 1 Each State, being 
in union with the others, determined its own corporate 
existence, determined the natural persons who, having been 
the constituent members of the colony, should continue 
as the electors or voters of the State in its use or exer- 
cise of the power of sovereignty in union with the other 
States. 

It is certain that nobody participated in political life as 
a voter for representative government except as his capa- 
city was derived from the will of the pre-existing and con- 
tinuing corporate body called " colony " and afterwards 
" State." 

There was, therefore, nobody in existence who actually 

1 As these pages are written Mr. Jefferson Davis's " Rise and Fall of the 
Confederate Government" appears (June, 1881), which I here notice as con- 
taining an exposition of the historical weakness of the theory of sovereignty 
in the people as a mass, as it had been presented by Story, Webster, Ever- 
ett, Motley, and others. (See Part II., The Constitution, Chapters IV.-IX.) 
But yet Mr. Davis, like all of the school he opposes, repeatedly asserts the in- 
herent sovereignty of the individual, that governments rest on the consent of 
the governed, using government in the same ambiguous way ( Vol. I. p. 299, 
452), and the possession of sovereignty by aggregate masses of people (Vol. 
I. pp. 142, 154, 155), as political axioms. One of his most deliberate propo- 
sitions, however, is (Vol. I. p. 157): "That political sovereignty resides 
neither in individual citizens nor in unorganized masses, nor in fractional 
subdivisions of a community, but in the people of an organized political 
body." Another work which appears simultaneously, and which contains a 
still more elaborate refutation of the historical basis for the so-called " Na- 
tional" theory, and which is characterized by the same mistaken notions 
about sovereignty, etc., is " The Republic of Republics ; or, American Federal 
Liberty," by P. C. Centz [pseudonym], Barrister. Fourth edition. 



512 THE QUESTION OF A REVOLUTION. 

Oaths to support the Constitution. 

held and exercised political power by right above law but 
these corporate bodies, and, therefore, nobody who did or 
could give or make State and national constitutions, but 
these States. 1 

Outside observers might think that the fact of the seces- 
sion war had proved sufficiently that our written Constitu- 
tion cannot of itself determine for the individual citizen who 
those shall be who will protect his life and property, and 
who can also compel his obedience for protecting the lives 
and property of others. 

It will be said, however, by those who would make 
deities out of constitutions, that the possibility of perjury 
and falsehood must be necessarily recognized ; that if 
everybody would " continue to execute all the express 
provisions of our national constitution, the Union would 
endure forever, it being impossible to destroy it, except by 
some action not provided for in the instrument itself." 2 

But there is something else, lying behind the Constitu- 
tion, which has to be settled before any conclusion as to 
perjury in breaking one's oath to support it, or as to crime 
in not obeying it as law can be reached. 

To show this I do not propose to appeal to the argu- 
ments of any secessionists or of any Southern statesmen. 

On more than one 'occasion during his distinguished 
career in Congress the present occupant of the presidential 
chair has given a view of this matter which, if accepted in 
his justification, must be equally serviceable for every 
other American citizen. 

In the course of debate on the confiscation legislation, 

1 Compare on these facts, ante, ch. iv. Those who attribute to " ideas " 
the force of law derived from a political sovereign (compare ante, p. 456), 
would probably claim the German author, Herder, as a leader, but even he 
said : " The historian will never attempt to explain a thing which is by a 
thing which is not. And with this severe principle all ideals, all phantasmas 
of a dream-world disappear." K. Hillebrand's Lectures on German Thought, 
p. 132. 

2 See Mr. Lincoln's language in his Inaugural, ante, p. 144, n. 



THEORY OF OUR NATIONAL EXISTENCE. 513 

Mr. Garfield's and Mr. Lincoln's Position. 

arising at the first session of the Thirty-eighth Congress, 1 
Mr. S. S. Cox, also a representative from Ohio, had asked 
whether " he [Mr. Garfield] would, to aggravate the pun- 
ishment of the traitor or to punish the innocent children 
of the rebels, break the Constitution ? " 
Mr. Garfield replied, — 

" I would not break the Constitution for any such purpose. . . . 
I would not break the Constitution at all, unless it should become 
necessary to overleap its barriers to save the Government and the 
Union." 

In the course of a debate which arose a few months 
later, and which will be • noticed again hereafter, 2 these 
remarks were recalled to Mr. Garfield's notice, and on that 
occasion he repeated the statement of his position. 

But, as being similar as an illustration of the point taken, 
I next refer to a well known paper written in the interval ; 
one which has for many persons, probably, an authority 
greater than they would accord to anything written by 
anybody now living. 

In the letter to Colonel Hodges, already mentioned, 
dated Washington, April 4, 1864, Mr. Lincoln wrote : — 

1 Jan. 14, 1864, 1st Sess. 38th Cong. Globe, 213 ; in a debate on a joint 
resolution explanatory of an " Act to suppress insurrection, punish treason 
and rebellion, to seize and confiscate the property of rebels, and for other 
purposes." See ante, pp. 59, 170. Speaking on the same matter, Jan. 28, 
1864 (Globe, 403), Mr. Garfield said that he could not agree either with 
the theory which "acknowledges that these States are out of the Union 
[which he attributed to Mr; Thaddeus Stevens], nor, on the other hand, 
agree with those who believe that the insurgent States are not only in the 
Union, but have lost none of their rights under the Constitution and laws of 
the Union." Mr. Garfield, with the majority of his fellow-statesmen, must 
however have sustained this legislation on a combination of two incompat- 
ible positions, one resting on the theory of an international war, and the 
other on the theory of municipal law against rebellion. Comp. ante, pp. 
170-179. On the same occasion, when discovering a precedent for this legis- 
lation in the several action of the States at the close of the Revolution, con- 
fiscating the property of the adherents to the crown, Mr. Garfield attributed 
it to the exercise of a war power. For this position he cited the authority 
of Jefferson, when Secretary of State in 1792. Globe, 404. 

2 See post, p. 515. 



514 THE QUESTION OF A REVOLUTION. 

■ ; — • ■ 

Mr. Lincoln's Letter to Colonel Hodges. 

" You ask me to put in writing the substance of what I verbally 
said the other day in your presence to Governor Bramlette and 
Senator Dixon. It was about as follows : ' I am naturally anti- 
slavery. If slavery is not wrong, nothing is wrong. I cannot re- 
member when I did not so think and feel, and yet I have never 
understood that the Presidency conferred upon me an unrestricted 
right to- act officially upon this judgment and feeling. It was in the 
oath I took that I would to the best of my ability preserve, protect, 
and defend the Constitution of the United States. I could not 
take the office without taking the oath. Nor was it in my view 
that I might take the oath to get power, and break the oath in 
using the power. I understand, too, that in ordinary and civil ad- 
ministration this oath even forbids me to practically indulge my 
primary abstract judgment on the moral question of slavery. I had 
publicly declared this at many times and in many ways. And I 
aver that, to this day, I have done no official act in mere deference 
to my abstract judgment and feeling on slavery. I did understand, 
however, that my oath to preserve the Constitution to the best of 
my ability imposed upon me the duty of preserving, by every in- 
dispensable means, that Government — that nation — of which the 
Constitution was the organic law. Was it possible to lose the 
nation, and yet preserve the Constitution ? By general law, life 
and limb must be protected ; yet often a limb must be amputated 
to save a life ; but a life is never wisely given to save a limb. I 
felt that measures, otherwise unconstitutional, might become lawful 
by becoming indispensable to the preservation of the Constitution 
through the preservation of the nation. Right or wrong, I assumed 
this ground ; and now avow it. I could not feel that to the best of 
my ability I had even tried to preserve the Constitution, if to save 
slavery, or any minor matter, I should permit the wreck of govern- 
ment, country, and Constitution all together. ... I add a word 
which was not in the verbal conversation." 1 

1 The remainder of this letter has already been quoted, ante, p. 470. 
If Mr. Lincoln was right in calling the secession ordinances nullities, and void, 
as acts, because there was nothing in the Constitution to authorize them 
(ante, p. 144, n.), this letter is an argument for the nullity of his own edict. 
Such claims as this of Mr. Lincoln are one of the marks of civil war in repub- 
lican states. While the issue was still pending between the second trium- 
virate and the party of Brutus and Cassius, Cicero wrote to Brutus, " By 
what right, by what law, shall Cassius go to Syria [as proconsul] ? By that 



THEORY OF OUR NATIONAL EXISTENCE. 515 

Mr. Garfield on breaking the Constitution. 

In the course of the debate already noticed, on the 
motion for the expulsion of Mr. Long, that gentleman 
had alluded to the remarks of Mr. Garfield on the 14th of 
January, as above cited. Mr. Garfield said in reply : — 

" I said what I did say upon that occasion with great circum- 
spection and care, and all I ask is that the gentleman will fairly 
quote me, as I presume he intended to do. In reply to the gentleman 
from the central district of Ohio [Mr. S. S. Cox], who is not now 
in his seat, when he asked me if I would break the Constitution, I 
answered that I would not break the Constitution at all, unless it 
should become necessary to overleap its barriers to save the Union. 
I did not say then, as I do say now, that on such an occasion I 
would overleap the barriers of the Constitution, but I would leap 
into the arms of a willing people who made the Constitution." 

On the same occasion, immediately after the remarks 
already cited, as to a right of revolution and his determined 
purpose to resist it by force (ante, p. 499), Mr. Garfield 
said : — 

" What is the Constitution that these gentlemen are perpet- 
ually flinging in our faces whenever we desire to strike hard blows 
against the Rebellion ? It is the product of the American people. 
They made it, and the creator is mightier than the creature. 
The power which made the Constitution can also make other instru- 
ments to do its great work in the day of its dire necessity." 

The question being asked by another member whether 
he had not, in the same remarks, alluded to his having, 
together with the other representatives from the State of 
Ohio, taken at the Speaker's desk the oath to support the 
Constitution, Mr. Garfield answered : — 

" I did ; and I am very happy the gentleman has reminded me 
of it at this time ; and I remember in the very preamble of that 
Constitution it is declared to be ordained and established for the 
purpose of promoting the general welfare and providing for the com- 
mon defence ; and on that very ground, based on that very state- 
law which Jupiter sanctioned when he ordained that all things good for tlio 
Republic should be just and legal." Trollope's Life of Cicero, II. 218. 



516 THE QUESTION OF A REVOLUTION. 

Nature of Fetish Worship. 

ment of its declared object, I not only lifted up my hand to swear 
to support the Constitution before God, but it makes me now sorry 
there had not been a sword in it when I lifted it up, to strike down 
any and all who would oppose the use of all the means God has 
placed in our power for overthrowing the Rebellion forever." 1 

In reply to a question from Mr. S. S. Cox, also a repre- 
sentative from Ohio, Mr. Garfield said during the same 
debate : 2 — 

" What I have uttered is this : When asked if I would under 
any circumstances override the Constitution, I said this and this 
only, — premising, as I believed, that the Constitution was amjale 
enough of itself to put down this Rebellion, that its powers were 
most capacious, and that there was no need to override it, — that 
if such a time ever should come that the powers of the Consti- 
tution were not sufficient to sustain the Union, if that impossible 
supposition should ever prove true [laughter from the Democratic 
side of the House~\, then I would say that we have a right to do our 
solemn duty under God to go beyond the Constitution to save the 
authors of the Constitution." 3 

Some will say, probabky, that such declarations show at 
least that there must be some very material limitation to 
that veneration for the Constitution which outside obser- 
vers have supposed to be so universal in our minds. 4 More 
critically considered, however, such language may rather 
be taken as betraying one of those phases which all fetish 
worship exhibits. While all goes well with the devotee 
he exalts his idol with song and sacrifice, and boasts its 
omnipotence as he invokes its terrors against rivals and 
enemies crouching about some other jungle-shrine. But 
if fortune is adverse, and his lusts fail of gratification, the 
idolater begins sulking before the senseless block, refuses 

1 Could Mr. Garfield possibly mean that he would have felt justified in 
taking, on his individual judgment and responsibility, the life of any or all 
who would oppose him in any assumption of power he might think proper 
for this purpose 2 

2 1st Sess. 38th Cong. Globe, 1505. 

3 On the same question compare ante, pp. 346, 347, and the notes. 
i Ante, p. 93. 



THEOEY OF OUR NATIONAL EXISTENCE. 517 

Nature of written Constitutions. 

incense and homage, rails at its obstinacy, and, as tilings 
grow worse, strips it of its ornaments, and even gives 
Mumbo-jumbo a douse in the horse-pond. The fetish, how- 
ever, is none the worse for this usage. When the clay of ad- 
versity is passed, the deity becomes respectable again to the 
enslaved imagination of the votary ; and when he has seen 
his desire satisfied on his enemies, he brushes up his soiled 
faith, renews his broken vows, and sets his god up again, 
with fresh paint and brighter feathers, — a somewhat 
changed but no less powerful divinity, to answer the needs 
of the superstition that gave it being. 

All citizens must be alike in respect to the obligation to 
obey the Constitution, whether they may have taken an 
oath to that effect on assuming the responsibilities of an 
office, or not. The question might be asked, how any mem- 
ber of the general Government, or any other citizen, is to 
know that those from whose will the Constitution derives 
its authority did not intend that their will should be main- 
tained only in the way therein indicated. This, indeed, has 
always been assumed as the great end, purpose, and ad- 
vantage of written constitutions, — that they limit even the 
ultimate sovereign. Whether this is not the fundamental 
fallacy and weakness of all constitutional governments is a 
question which need not be here examined. That Mr. 
Garfield on this occasion saw this obvious objection to his 
position appears from his evading it by assuming that, in 
indicating the general welfare and the common defence as 
the ultimate objects of its provisions, those from whose 
political existence the Constitution derived its authority 
had entrusted to him the care of that existence, indepen- 
dently of any written Constitution whatever. 

Considering that for several generations the people of 
this country having been trying to persuade themselves 
that the written Constitution of the United States must be 
all-powerful for the conservation of everything else, it 



518 THE QUESTION OF A REVOLUTION. 

Position of the Citizen to the Constitution. 

would not be strange if some who read these candid state- 
ments find it difficult to understand why this Constitution 
cannot be trusted to take care of itself as well. 2 

But Mr. Lincoln and Mr. Garfield were correct in this 
at least, if they meant to say that there is no constitution 
to be faithful to, at any time, unless there is somebody in 
existence at the same time to whom its authority can be 
ascribed ; and their argument, if it may be called such, 
may be construed as being that they regarded their oaths 
to support the Constitution, as law, equivalent to oaths of 
allegiance to some sovereign existing independently of the 
Constitution. 

This being recognized as the true view, it remained to 
determine who the person or persons were to whom al- 
legiance was due ; which is no other question than the 
question, Who are the person or persons from whose will 
the written Constitution is law for anybody ? 

The question turns upon the existence of a fact neces- 
sarily preceding the Constitution in the order of cause and 
effect. Here, therefore, no courts, no learned jurists, no 
arguments from the lawyer's point of view, can decide the 
duty of the individual citizen. It is a question of fact, to 
be determined for himself by the intellect, conscience, and 
bodily senses of each natural person on the testimony given 
in history, continuing to the moment of the question. And 
responsibility for the answer will rest on each such person 
individually. 2 

1 The difficulty in the case is that it can do so only " as far as its nature 
will permit," to use Marshall's words, ante, p. 430. 

2 Paper No. 83 of the Loyal Publication Society [1865] was one by Dr. 
Lieber, proposing certain amendments to the Constitution, the first of which 
was to read : " Every native of this country, except the sons of aliens whom 
the law may exempt, and Indians not taxed, and every naturalized citizen, 
owes plenary allegiance to the government of the United States, and is en- 
titled to, and shall receive, its full protection at home and abroad." Lieber's 
Miscell. II. p. 177. If adopted in the ordinary manner of an amendment, 
this provision could not have had the proposed effect. For, if law, like tho 



THEORY OF OUR NATIONAL EXISTENCE. 519 

Position of an Officer of the Government. 

Mr. Lincoln and Mr. Garfield, the one being the Presi- 
dent, and the other a member of the legislature, each meas- 
ured his capacity as an officer of a government established 
under a written Constitution by his own unsupported de- 
cision of this question, as presented to each citizen of the 
United States. In the position which they took at this 
crisis, the Constitution could be no guide to their duty 
as members of the Government. It could merely be to 
them, as to any other citizen, part of the evidence leading 
their minds to a knowledge of those who were the creators 
of the Constitution. 

It is plain, therefore, that a member of the Government 
who takes such a position must take it in view of his indi- 
vidual duty, as a citizen, towards some political superior. 
But it is equally clear that everybody else is in the same situ- 
ation in regard to this question, — whether to observe the 
Constitution or not to observe it, — and must likewise rest 
his political obligation on his own unsupported knowledge 
of the fact which is the cause of the Constitution as effect. 1 
It must, in the last resort, be a question of conscience for 
each person obliged to recognize a sovereign, somewhere, 
before he can recognize a constitution as law. 

It will be seen, then, that, logically, President Lincoln 
and Mr. Garfield were in no better position on this point 
than any States-right theorist or practical secessionist. 
This was precisely the position taken by the citizens of 
the eleven States of the Confederacy. They also recog- 

rest of the Constitution, the provision itself must be referred to the continuing 
will of somebody, and, whoever that was, to him or them the allegiance would 
be due. This proposition was an illustration of Dr. Lieber's theories about 
the source of law or of the relation of law to " sovereignty," a term which in 
conversation he often said " we must get rid of." 

1 The difference in the positions of the member of a government and the 
private citizen is in the opportunity which the former may have "to force 
the hand " of those who have entrusted him with constitutional power. It 
was from this opportunity that Mr. Lincoln's Emancipation Proclamation had 
its so-called validity. 



520 THE QUESTION OF A REVOLUTION. 

By Whom the Fact is settled. 

nized the existence of the authors or creators of the Con- 
stitution as superior to the existence of the Constitution 
as law. But the testimony given by history, as it was 
apprehended by their intellects, consciences, and bodily 
senses, told them that the Constitution derived its author- 
ity at that time from the will of States severally and indi- 
vidually sovereign. 

When the issue is presented in this form, all that those 
who would support the general Government, on Mr. Lin- 
coln's and Mr. Garfield's theory of political duty, can say 
is, that they intend to act as though any who differ from 
them as to the facts were mistaken as to the facts. 

If they succeed in that course of action, that settles the 
question of fact for themselves and for everybody else. 
For the question is one which is never settled as matter 
of prevailing opinion only ; that is, not by the mere opinion 
of even the greatest number. 

The citizen must be individually responsible for his own 
decision as to his political duty ; but an opinion on the 
question of fact, whether held by one or by many, counts 
for nothing, as far as one's self or others are concerned, 
except as it is supported by some actual or prospective 
exertion of force. 

Those who claim the capacity to determine, for them- 
selves and for everybody else, the personality by whose 
will the Constitution became and continues to be law must, 
in reality, claim to be themselves that personality, or to be 
themselves the makers of the Constitution. To decide, 
for others, who is their political superior is to be that po- 
litical superior. Anybody, who likes to try, may take this 
position ; but to make it of the slightest importance to 
anybody else, he or they who take it must be able and 
ready to maintain that view of the facts by main strength. 
In point of fact, those who have actually done this, that is, 
who have taken this position and maintained it by force 



THEORY OF OUR NATIONAL EXISTENCE. 521 

The Weakness of a certain School. 

from the first day of national independence to the present 
moment, have been the political peoples of the States which 
have continued in a voluntary union. And this is the 
evidence, and the only evidence possible, that they, the 
States in union, are those from whom the Constitution de- 
rives its authority. 

Instead of recognizing some actual person or persons as 
actually holding sovereign power, Mr. Lincoln and Mr. 
Garfield in these instances, as all of that school which 
attributes sovereignty to the nation as a mass have done, 
placed their own private standard of right and wrong, of 
public and private advantage or disadvantage, in the place 
of the will of a sovereign. This was indeed the charac- 
teristic method of Story, Lieber, and many others who 
have had a leading part in educating their generation in 
political life. 1 

But in this respect, these American publicists are not 
distinguished from many others who in other countries 
have lived contemporaneously. They were, in many re- 
spects, in harmony with a class of political reformers in 
Europe, who are contending against what they call " prop- 
erty in power," whether held by a few or by many, and 
who are trying to convince the world of the possibility of 
" the sovereignty of law," 2 of the possibility of societies 
governed by justice, without recognizing anybody who 
shall determine what is just: though all of this school 

1 In a notice of Dr. Lieber's Miscellanies, in the Nation, March 27, 1881, 
it was remarked : " Dr. Lieber never seems to have fully comprehended 
the distinction, now so fully recognized by all English publicists, between 
the domain of law, embracing the legal conception of rights, duties, and the 
attendant sanctions, and that of ethics. This fault, so noticeable now, 
wholly escaped the observation of his own generation, because it was shared 
by almost all the leading writers of the day. Kent, Story, and all their con- 
temporaries had very antique and confused conceptions as to the relation 
between law and morals." Compare, on the other hand, authors such as 
Austin, Maine, Bagehot, and Stephen. 

2 Ante, p. 96. 



522 THE QUESTION OF A REVOLUTION. 

A Question of Political Expediency. 

propose that everything they may personally consider right 
shall be taken for justice. 

It seems to be assumed, at the present time, by many, 
that all political and social evils would necessarily be less 
if the power to remedy them were entrusted to a general, 
central, or national government, — employing the States, if 
allowed to subsist, as agencies perhaps — than if the requi- 
site power should be continued, as far as it has been " re- 
served," in the hands of the States. The doctrine may be 
true enough, as political philosophy ; 2 but, even if it is, 
the question whether the power is so located is not deter- 
mined bj' such a principle, and nobody has a right to act 
as if it were so determined. It is certain that no such 
principle was accepted by our predecessors of a century 
ago. Whatever the actual seat of sovereignty, as a unit, 
may have been, it is certain that all the public law pro- 
ceeding from that sovereignty has been founded on the 
expediency of distributed powers. 2 

There is no necessity, however, that we who live to-day 
should agree with our predecessors on this or any other 
point of political expediency. 3 Whatever the location of 
sovereignty as a unit may have been before the war, it is 
conceivable that, now at least, it should be no longer held 
by the political peoples of the States united. And if this 
is the case, there is nobody else to hold it but the person 
or persons known for the time being as constituting a 
National Government : because the possession of sover- 

1 It is open to foreign observers, who believe in this as a principle, to 
criticize our form of government for not recognizing it, as does Mr. Bage- 
hot (English Constitution, 282). But it is very singular that a writer like 
Bagehot, as soon as he looks at our political structure, argues about it as if 
the possession of ultimate power could, with us, be determined by law, or 
was not a question of fact upon which all law must depend. See ib. pp. 
281-289. 

2 For this position, Lieber and De Tocqueville, among many, may be 
cited as leading authorities. 

3 Ante, p. 319. 



THEORY OF OUR NATIONAL EXISTENCE. 523 

Mr. Lincoln's Address at Gettysburg. 

eignty by the people as a mass is nothing but an hypothe- 
sis, and has no political consequences whatever, except as 
some person or persons may succeed in using sovereign 
power in the name of such people. 1 

If we are now to conceive this doctrine or theory of our 
national existence as established by the military success of 
the Government in the war which closed in 1865, it is 
immaterial to the question of present obligation whether 
it is or is not to be recognized in history as a revolutionary 
change. 

On the dedication of the cemetery at Gettysburg, Mr. 
Lincoln's simple and pathetic eloquence declared, — 

" The world will little note, nor long remember, what we say 
here, but it can never forget what they did here. It is for us, the 
living, rather to be dedicated here to the unfinished work that they 
have thus far so nobly carried on. It is rather for us to be here 
dedicated to the great task remaining before us — that from these 
honored dead we take increased devotion to the cause for which 
they here gave the last full measure of devotion — that we here 
highly resolve that the dead shall not have died in vain ; that the 
nation shall, under God, have a new birth of freedom, and that the 
government of the people, by the people, and for the people, shall 
not perish from the earth." 

From the antecedents, as well as from the language, of 
the speaker on this occasion, it is known that he regarded 
the object of that sacrifice of life as a noble, just, and 
righteous one, and it must be assumed that, whether it 
came by the path of revolution, or by that of fidelity to a 
pre-existing sovereign, he was ready to accept some " gov- 
ernment," or possession of sovereignty, as a fact estab- 
lished at the cost of those labors and lives which had thus 
consecrated the scene of their last effort. 

The question then remains awaiting an answer, What 
is this " government of the people, by the people, and 

1 Ante, p. 333. 



524 THE QUESTION OF A KEVOLUTION". 

Unsettled Questions. 

for the people " ? And this is still the same question it 
was before, — the question of the definition of the words, 
" the people of the United States." 

It was said in the last presidential Inaugural that " un- 
settled questions have no pity for the repose of nations," 1 
and no truer words, or words more worthy of their con- 
sideration, could be addressed to the American people. It 
is evident that there will always be unsettled questions in 
the daily life of any nation ; and more of such may be 
expected in new, growing, or developing countries, and in 
the present era of invention, progress, and free inquiry. 
As to questions in respect to ordinary domestic and foreign 
policy and legislation, if they are for a time unsettled, it 
is at least settled who the person is, or who the persons 
are, who can settle them. But there is a class of questions 
as to this very point ; or, rather, there is this question of 
questions, — Who is it that can settle unsettled questions ? 
and wherever there is a nation for whom this question 
is unsettled the prospect of repose is very limited. Mis- 
erum est servitus ubi jus vagum et incertum est, and the 
jus is always uncertain where the power to declare what 
shall be obeyed as law is uncertain. 

The desire for political power, as incidental to all human 
nature, 2 must be expected to operate in this country, as 
elsewhere, whatever may be the theory hereafter accepted, 
— whether that of a supreme government, assuming to rep- 
resent the nation as a mass, or, on the other hand, that of 
some federal union of sovereign States. It must be antici- 
pated that political parties will exist, in either case, as 

1 March 4, 1881. The President used the expression in the following 
connection : " If in other lands it be high treason to compass the death of 
the king, it should be counted no less a crime here to strangle our sovereign 
power, and stifle its voice. It has been said that unsettled questions have 
no pity for the repose of nations. It should be said, with the utmost em- 
phasis, that this question of the suffrage will never give repose or safety to 
the States of the nation until each, -within its own jurisdiction, makes and 
keeps the ballot free and pure by the strong sanctions of the law." 

2 Ante, p. 307. 



THEORY OF OUR NATIONAL EXISTENCE. 625 

Distinction in the Nature of Parties. 
■ r 

they exist at the present day in all civilized countries, and 
especially in those having a more or less democratic form 
of government. 

But the contest between the Ins and the Outs for the 
control of the administration of a government is one which 
may, and ordinarily does, go on continuously with very 
little attention from the great majority of citizens. As 
long as there are no difficulties in the conception of any 
as to the personality who is the actual sovereign, the indi- 
vidual citizen can regard himself as true to all political 
obligation, whatever party may control the administration. 
However eager such parties may be in the pursuit of 
official power, and however important the moral and ma- 
terial tendencies of their respective policies ma}" be, there 
is a sense in which it may be said that the repose of the 
nation or state is undisturbed. 

For the rivalry of such political parties does not neces- 
sarily involve questions as to the ultimate seat of supreme 
power, the forma imperii, — the possession of government 
in that sense, — the possession of power above law. Politi- 
cal parties are supposed to contend for the control of 
government in the lower and more ordinary sense of the 
forma regiminis, — the administration of government in 
its several functions, — the possession of power under 
law. 1 In such party contests there is no question of 
allegiance to a sovereign. But if a political party aims at 
effecting a change in the actual seat of power, — of power 
above law, — it acquires a revolutionary character entirely 
distinct from that of ordinary political parties, and in the 
proportion that the possession of ultimate political power 
is involved in the strife of contending factions it acquires 
the character of civil war. 2 

1 Ante, p. 302. 

2 In some countries, though having a republican or constitutional form 
of government, the party actually holding the administration may claim 



526 THE QUESTION OP A REVOLUTION. 

Relation of the Slavery Question. 

Whatever may be the moral responsibility of individual 
citizens attending either of such conditions of political 
strife, it is plain that they cannot, if they would, occupy 
the same position of indifference in reference to parties of 
the latter description which they might in respect to nor- 
mal party contests for administrative power. For as soon 
as. the question of allegiance is involved in the success of 
one or the other party, even non-resistance, as towards 
one side, becomes criminal, as towards the other. 1 In the 
case, then, of such unsettled questions there is no repose 
for the nation or for the citizens ; because there is no cer- 
tainty either as to the duty to be rendered on the one 
hand, or the protection to be received on the other. 

The question of the actual location of sovereignty in 
the hands of some particular persons, as distinguished 
from some others, being purely a question of fact, has no 
necessary connection with problems of political economy, 
nor with any moral or religious considerations as to the 
right or wrong of any particular social institutions. But 
as slavery had always been an institution resting on State 
laws, and as the doctrine of State-sovereignty and alle- 
giance to the State had been employed to justify secession 
in the defence of slave-holding interests, many persons 
seem to have persuaded themselves that there was an 
intrinsic connection between the political doctrine and the 
domestic institution. 2 At least, they have argued as if 
the question of political obligation, as between the general 

that it alone represents the actual sovereign. This has been so often illus- 
trated in the civil dissensions of some Spanish American republics that it 
has acquired, with us, a distinct name, — the Mexicanization of institutions. 
In such countries all party contests have the character of civil wars. The 
same thing would occur in this country, if a party, on the theory of a " war 
of ideas," should attempt to retain the control of the general Government 
against the popular vote. Compare ante, p. 472, note. 

1 Compare ante, pp. 98, 503. 

2 Compare the extract from Mr. Garfield's speech, Aug. 4, 1876, ante, p. 
467. 



THEORY OF OUR NATIONAL EXISTENCE. 527 

The Question not one of Ethics. 

Government and the State, could not have presented itself 
to the mind of the citizen, except in connection with the 
question whether the slavery, or, more generally, the 
social and political inferiority, of descendants of African 
negroes should be approved by his individual conscience. 1 

Having accustomed themselves to regard the powers of 
the general Government as the proper instrument for sus- 
taining their personal views on this question, many per- 
sons seem to assume that a centralized government would 
necessarily promote any moral or economical objects which 
they may individually approve, and they now congratu- 
late themselves and their fellow-citizens upon an approach- 
ing era of peace and virtuous prosperity under the sway 
of the prevailing opinion of the hour, which they take for 
granted will always be identified with their own. 2 

But this view eliminates, not only the original principle 
in favor of a distribution of the powers of sovereignty, 
but even all idea of political obligation. It assigns to the 
moral judgment of the individual citizen the place which 
can only be occupied by a historical fact, — the fact that 
some person or persons must be recognized as possessing 
the supreme power, and as claiming the allegiance and obe- 
dience of the citizen, before right or wrong, in their legal 
sense, can exist. 



1 For the contradiction of this view given by the history of slavery, com- 
pare ante, p. 376, note. 

2 This way of looking at the whole subject as an issue depending on the 
moral feeling of the individual citizen has not been limited to any one class 
of persons. Compare ante, p. 492, note, a quotation from one of Mr. Gar- 
field's speeches. But from the antecedents of those who have most con- 
spicuously illustrated it, it might be called the clergyman's point of view ; 
which, on such a question, is even more inadequate than the lawyer's. {Ante, 
p. 443.) It is evident that the same sort of reasoning might at any time be 
used as effectually to support State sovereignty, to say nothing of slavery, 
as it has been by persons at the South, of the like clerical antecedents. 
This view is closely connected with that confusion of law with ethics which 
characterized so many jurists of the last generation. Compare ante, p. 521. 



528 THE QUESTION OF A REVOLUTION. 

Necessity of the Question. 

It was the doubt, uncertainty or, rather, the absolute 
ignorance of the people of this country on this question of 
political fact which alone made the civil war possible. 
Had there been a universal recognition of some sovereign 
to whom allegiance had been due up to that moment, 
either secession would have been accepted, as matter of polit- 
ical faculty on the State sovereignty theorj^, to be followed 
by international relations, peaceful or warlike, or it could, 
on some opposite theory, have been attempted only as 
simple revolution, and been recognized as such. If it had 
taken this form in the minds of the Southern people, that 
is, if they had attempted it without a sense of support in 
the doctrine of State sovereignty, the knowledge of this 
on the part of the rest of the country, and its recognition 
of the movement as revolution pure and simple, would 
have given a different character to the conduct of the war. 
It would have excluded entirely that idea of international 
war, — the idea of war between the States as such, — which, 
at the beginning, palsied the energies of the general Gov- 
ernment, and invited foreign sympathy with the Southern 
cause, and which was at the first, and has ever since been, 
a source of division, bitterness, and partisan bickerings at 
the North. 

If there is such a thing as a natural right of a natural 
person in civil society, it must be the right to know who 
those are who, as sovereigns, actually hold power, for the 
use of which they are responsible only to God and their 
own consciences, and who can determine on the lives, lib- 
erty, and property of others, — being answerable to none 
other, unless by the appeal to arms. 

The question considered in this essay is, then, one about 
which every human being standing on the soil known in 
geographies as the United States of America, or even hear- 
ing the name pronounced in any part of the world, may 
claim a right to inquire. 



THEORY OF OUR NATIONAL EXISTENCE. 529 

The Object of this Essay. 

It is also to be remembered that this inquiry is far less 
important as a right than it is as a necessity. It is, in- 
deed, a right because it may at any moment become a 
necessity. Yet, however obvious the right may be, or 
however important to the citizen may be the consequences 
of not arriving at the true answer, it is possible that he 
may sometimes be unable to find an answer, because at a 
loss as to whom he shall, inquire of. 

A doctrine of State-sovereignty, from which the capac- 
ity of a State to secede was logically deducible as a polit- 
ical right independent of law or written constitution, had 
been asserted, from the earliest period of our political ex- 
istence, by a large number of persons eminent for learning, 
private worth, and public services. They derived that doc- 
trine from a view of history, preceding the adoption of the 
Constitution, 1 which had been generally accepted in all 
parts of the country until a time within the memory of 
persons still in active life, and the doctrine itself was one 
which was also in harmony with statements of elementary 
political principles, which, if false, as they have herein 
been held to be, have from the period of the Revolution 
of 1776 to the present moment had almost universal cur- 
rency with the various political schools known in this 
country. 

But, since 1861, a new history has been put on record, 
which requires some theory of our national existence, or 
of the location of sovereignty, to be found which shall not 
only be a consistent denial of all theories supporting a 
right of secession, but which shall be in harmony with the 
political action of the Government, as recorded in that his- 
tory ; even if such a theory leads to the denial of all the | 
elementary principles hitherto 'accepted. 

It has been the object of this essay to show that one of 
two conclusions only, as to our national existence, or the 

1 Ante, pp. 99, 100. 



530 THE QUESTION OF A REVOLUTION. 

The Alternative presented. 

location of sovereignty, can be reconciled with this new 
history, namely, either — 

That of the supremacy, in union, of the States volun- 
tarily remaining united (including the doctrine of possible 
State-lapse), of which States in union the government or- 
ganized under the Constitution is only the agent ; or — 

That of the supremacy of a number of persons compos- 
ing a " National " government, to whom the States are 
subordinate, and on whom they constantly depend for the 
continued exercise of the powers "reserved " to them, as 
expressed in the language of the Constitution. 

Whether either one of these conclusions involves the 
supposition of a successful usurpation, or of a revolution, 
is not material to the validity of the above alternative ; be- 
cause, in an} T event, the political occurrences of the last twenty 
years are to be accepted on some theory, — on the theory 
of a usurpation or a revolution, if none other can be found. 1 

But if we are to judge from that utter failure of all the 
" overwhelming argument " produced before 1861, — a fail- 
ure which the "wager of battle" proved, if it proved 
nothing else, 2 — it is doubtful whether the mass of citizens 
will be able to study out, each for himself, any similar 
question of political duty, if such should hereafter arise as 
between persons composing a National Government, claim- 
ing sovereignty in the name of the people as a mass, and 
the States, — the organized political peoples of the States, 
as sovereign in union. 

The individual natural person known either as citizen 
or as subject must decide the question for himself and take 
on himself personally the responsibility for his decision. 
That is to say, there is no one but the supreme power- 
holder who can decide for the individual citizen or subject 
who that supreme power-holder is. It is always, in the 

1 Compare ante, pp. 107, 333, 347. 

2 Ante, p. 89, note 2. 



THEORY OF OUR NATIONAL EXISTENCE. 531 

Position of the Legal Profession. 

last resort, a question of force as distinguished from a 
question of law ; it is a question of the place of that force 
which is the source of law, — the sovereign power of law- 
giving ; 1 and the question the individual asks of himself 
and of everybody else is, Who is the person, or who are 
the persons, who will compel my obedience? 2 

But it is the essence of republics that they are states in 
which the forma regiminis, or government in the lower 
sense, is distinguishable from the forma imperii, or gov- 
ernment in the higher sense. 3 And in such states the cit- 
izen or subject, when called upon to recognize the supreme 
source of law, even to the extent of exposing his life for 
its defence, looks to those who have assumed the duties of 
the forma regiminis, the government in its lower sense, to 
point out to him who he is or who they are whom they re- 
gard as that supreme source of law, when they assume the 
right to administer any law at all. 

I have in another place noticed Judge Joel Parker's ani- 
madversions on a lecture by Judge Emory Washburn be- 
fore the Harvard Law School in 1864, which the former 
criticized as teaching the duty of the legal profession to 
construe and interpret the Constitution thereafter in such 
a way as to effect a reorganization of the general Govern- 
ment, while still regarding it as a government under a 
a written constitution as law. 4 

But perhaps Judge Washburn meant only to indicate 
as a fact, or as an unavoidable circumstance incident to 
the then recent occurrences, the fact which I here wish 
to point out, — that the legal profession in general, and 
more particularly the judiciary in all parts of the country, 
must be expected to understand for themselves, and be 
ready and willing to explain to others, upon what theory 
of the possession of supreme power the action of the gen- 

1 Ante, p. 97. 2 Ante, p. 98. 

3 Ante, p. 302. * Ante, p. 360. 



532 THE QUESTION- OF A REVOLUTION. 

Why Political Power is recognized. 

eral Government during and since the war is to be justified, 
and whether justified upon the supposition of a revolution 
having occurred since 1861, or upon some other view of 
history. 1 

The great majority of persons in this country, as in 
in every part of the world, desire first of all to live each 
under his own vine and fig-tree, with none to molest him 
or make him afraid ; and each person of average intelli- 
gence knows that for this end there must be some holder 
of supreme political power, to give him protection. The 
mass of men may all want liberty above all things ; but 
they also know, practically, that whatever it may be that 
they call liberty, it must include protection if the liberty 
is something which all can enjoy. They know that liberty 
for one means law for others, and, if they did not know it 
before, an experience of war, and especially of civil war, 
tells them that law means power, and that power means 
somebody holding power. 

In short, with all their love for liberty for themselves, 
men want to know who it is whom they must obey, and 
who it is for whom they may be required to risk their 
lives in battle in order to render that liberty secure under 
his protection. 

But the history of this country, just as much as the his- 
tory of the rest of the world, shows that unless men can 
recognize some such supreme power-holder in existence, 
whose ability to secure to them liberty and protection is 
brought to trial, they do not gather together for fields of 
mutual slaughter. 



1 The vocation of the legal profession is to show the connection between 
some rule of action and the will of the political superior. But the difficulty 
with these two learned jurists and others has been that they did not see that, 
though lawyers must profess to know who that political superior is, his ex- 
istence cannot be determined from the lawyer's point of view ; that is, as a 
question under law. Ante, pp. 98, 109. 



THEORY OF OUR NATIONAL EXISTENCE. 533 

The Question of Fact presented. 

In point of fact, people in general do not take up arms 
to cany out abstract ideas about anything, not even 
about government or about the possession of sovereignty. 
The greater number in every country cannot have either 
the leisure or the learning to study abstract politics, even 
if they had the inclination ; nor do they regard any ab- 
stract political principles so important that anybody should 
be expected to lay down life for them. 

Whatever may be the meaning of the words " the gov- 
ernment of the people, for the people, and by the people," 
the fact is that there is no countiy in the world where any 
considerable number of persons have proposed to lay down 
their lives, or see the lives of their husbands, brothers, or 
sons laid down, that it "might not perish from the earth." 

The battle of Gettysburg was not fought for any such 
vague " idea." Those whose blood consecrated the victory 
on that field fell to support the authority of some visible 
possessor of sovereign power, who asked the sacrifice in 
the name of such authority. 

It has not been within the scope of this essay to ask 
whether the written Constitution of the United States 
is or is not a masterpiece of legislative institution of gov- 
ernment ; nor have I proposed either to advocati or oppose 
any actual or possible investiture of sovereign power, as 
being, or as not being, desirable in view of the moral or 
the material interests of the inhabitants of this country. 
I have not even concerned myself with history, except as 
that may indicate a now-existing fact ; and the only thing 
considered herein as the ultimate object of the investiga- 
tion has been, What is the fact, the now-existing fact, 
about this matter ? 

It is possible enough that the United States, such as I 
have supposed them to have been before 1861, or what- 
ever they were when they came into being in 1776, have 
had their day, and are things of the past, to be known here- 



534 THE QUESTION OF A REVOLUTION. 

The new Sovereign. 

after only as consigned to the limbo 2 of political vanity, 
and that they have been succeeded by something entirely 
different, though still, unfortunately, bearing the same 
name, which some had long thought a blunder, 2 and which 
now must be regarded as a bore and a nuisance. For my 
own part, I am ready to recognize any fact in the world, as 
a fact. If the fact is that A., B., or C. is the actual su- 
preme power-holder in this country, I am eager to know 
and accept the fact ; and in such a matter to know and to 
accept are one and the same thing. 3 It may be that the 
only persons to whom allegiance is now due or will be due 
are the gentlemen — or hereafter, perhaps, the ladies and 
gentlemen — who shall occupy the executive, legislative, 
and judicial departments of the government now located 
at Washington. Or, it may be, as seems far the most 
likely, that the legislative branch of the Goverment is the 
approaching sovereign. As soon as that may be the es- 
tablished fact, I shall be as ready as any one to cry 
" Long live King Congress ! " till King Cromwell come. 

As long as the question of the actual seat of supreme 
power — the power from which the Constitution derives 

1 . . " but store hereafter from the earth 
Up hither like aerial vapors flew 
Of all things transitory and vain, when sin 
With vanity had filled the works of men, 
Both all vain things, and all who in vain things 
Built their fond hopes of glory or lasting fame, 
Or happiness, in this or in the other life, 

.♦ all these upwhirl'd aloft 

Ply far off 

Into a limbo large and broad, since called 

The paradise of fools, to few unknown 

Long after." — Paradise Lost, b. iii., verses 445, 493. 

2 Compare Dr. Woolsey's language, anle, p. 120. " The name ' United 
States of America' is an unfortunate one, and has doubtless led many minds 
into error." Mr. W. W. Story's letters to the London Daily News, 1862 ; 
pamphlet " The American Question," p. 48. 

3 Compare ante, p. 355. 



THEORY OF OUR NATIONAL EXISTENCE. 585 

Causes of the War distinguished. 

its authority as law — is an open one, it will be for the 
American citizen to consider whether those who demand 
his co-operation to sustain their measures of government 
are parties acting in the legitimate sphere of parties 
under a constitution as law, or are, in reality, contending 
in behalf of some claimant of supreme power above the 
Constitution. 

The question which has in this essay been presented as 
the essential subject of interest may be novel to our inex- 
perience and unwelcome to our national self-complacency ; 
but the difficulty of finding an answer to a question of 
that sort is no novelty in the history of the world, and the 
consequences of not finding for it a ready answer are not ' 
merely those which have left their record on many a blood- 
stained field of battle. 

Whatever may be the moral, economical, and social is- 
ues which hereafter shall be regarded as " settled by the 
war " they have had a sectional aspect, apart from any 
connection with conflicting political theories. This was 
caused by differences in conditions of soil and climate, 
which associated the Southern States in their industrial 
interests and social constitution, and consequently united 
them in their continued support of negro slavery, though 
it was always dependent on the legislative will of each 
State severally. 

It was due to this sectional character of the moral, eco- 
nomical, and social issues that the accidental occasion of 
the war — the causa causans, the slavery question — has 
concealed almost entirely the causa sine qua non, the 
doubt as to the political duty of the citizen. 1 It was this 
which caused it to appear, so far as it has been allowed to 
appear, as an essentially sectional issue, or one which could, 
by itself, divide the country into two sections, each com- 

1 Ante, p. 107. 



536 THE QUESTION OF A EE VOLUTION. 

Sectional Aspect of the Civil War. 

posed of contiguous States, necessarily agreeing in opinion 
upon that political question. 1 

It seems very improbable that the States should ever 
again, in consequence of any geographical conditions, be 
discriminated into sections so antagonistic in interests 
and, as a consequence, so opposed on a question of moral 
feeling. 

But the question of political allegiance can hardly be 
imagined as a sectional one, unless in connection with 
some issue equally dependent on geographical and material 
conditions. So it may be expected, now that the immedi- 
ate occasion of the war, the slavery question, is removed, 2 
that the question, To whom is allegiance due by each natu- 
ral person ? should receive a clearer recognition as one 
essentially distinct from all sectional differences. 

It was due to the sectional character of the Rebellion 3 
that the severance of personal relations which was inci- 
dental to it, or to the war which grew out of it, was more 
like that which occurs between the subjects of previously 
friendly nations, in case of war, than like that whicji is an 
ordinary incident of rebellion and civil war. In spite of 
the bitterness of language, which was mainly due to differ- 
ence of feeling on the slavery question, the antagonisms of 
the war did not, to any great extent, reach down to that 
disruption of communal, social, and domestic bonds which 
is incidental to civil dissensions when the question of loy- 

1 Compare Mr. Garfield's remarks of Aug. 4, 1876, ante, p. 467. 

2 The question of equality or inequality of races in respect to the polit- 
ical capacities of the citizen, or, rather, the question, By what political 
authority those capacities shall hereafter he determined, in the case of any 
inhabitant of the States 1 remains as a legacy from the reconstruction 
measures, in connection with the question of a revolutionary change in the 
seat of sovereign power. Compare ante, p. 354. 

3 I consider myself entitled to use this term, because, on the theory pre- 
sented herein, it can be seen to be rebellion, though I do not understand 
how it can be called such under any of the theories popularly received at the 
North. 



THEORY OF OUR NATIONAL EXISTENCE. 537 

The Question which is not sectional. 

alty or disloyalty to a visible personal sovereign is clearly 
recognized as the question at issue. 

For this question of loyalty to a sovereign is one which, 
more than any other, has divided men in their political, 
social, and even domestic relations. It has severed them, 
not merely as nation against nation, people against people, 
or state against state, in their external relations, hut, more 
visibly and disastrously, as nations, peoples, states, in 
their internal relations ; dividing them in every subordi- 
nate organization of human society, as the constituent mem- 
bers of provinces, cities, towns, communes, families, house- 
holds ; marshalling them against each other, not as rival 
political parties, but as enemies by the law of nations, 
under hostile banners, awaiting the arbitrament of the 
sword. 1 

If among the " unsettled questions " of the present mo- 
ment the question of the location of ultimate supreme power 
is to be included, it can no longer be regarded as one on 
which a " solid " mass of States will be opposed by another 
equally " solid " mass, or as one in which the people of the 
country will be divided in opinion mainly as they are also 
divided by geographical or climatic distinctions. If the 
question, hereafter, is to assume the form of a question of 
force, between those who support a central or National 
government, claiming to represent the ultimate sover- 
eign, and those who support the States as political organ- 
izations, sovereign in their union, the contest will be 
one dividing us as the constituent members of States, cities, 
towns, communes, families, and even households. If, in 
spite of all the " overwhelming argument " which either 

1 This idea must have presented itself to Mr. Garfield's mind when, in 
commencing his reply to Mr. Long's proposition (ante, p. 498), he said, " Mr. 
Chairman, I should he obliged to you to direct the sergeant-at-arms to bring 
a white flag and plant it in the aisle between myself and my colleague 
who has just addressed you." 38th Cong., 1st Sess., Globe, 1503. 



538 THE QUESTION OF A REVOLUTION. 

Position of the Supreme Court. 

side can produce, the appeal is again made to the ultima 
ratio regum on the same question, we shall then know 
what civil war really is. 

If such a day awaits us in the future, the jurists and the 
legal profession in all its departments will be as powerless 
to decide the question as they proved themselves to be in 
1861. 

The Supreme Court itself may then try to raise its voice 
above the shouts of contending factions, hoping to appear 
on the scene of fraternal strife like the heralds waving the 
sacred olive-boughs between the ranks of jarring Grecians ; 
but no court of law can decide an issue upon which depends 
the validity of each justice's commission. 

In such a crisis of a nation's fate the voice of the ju- 
diciary cannot be that of the umpire or of the peace- 
maker : it should rather be like the sound of the trumpet 
which summons one or the other of two armed hosts to 
the onset. 

But if that trumpet give an uncertain sound, who shall 
prepare himself to the battle ? 



INDEX. 



Abbott's Digest, on Reconstruction, 211, n. 

Abstractions, how regarded, 163, n., 291. 

Adams, Professor C. K., on consolidation in France, 336, n. 
Mr. H. B., in N. Am. Rev., 345, 346. 
Mr. J. Q., on sovereignty of the people, 124, n., 334, 507, n. 

Aliens, position of, in civil war, 191, 193; confiscation of their prop- 
erty, 179-186. 

Allegiance, question of, stated, 209, 285; to whom due, 357, n. 

Amendment, adoption of three new articles of, 217, n. ; in connec- 
tion with reconstruction, 217; possible change by, 367; Revolu- 
tionary construction of, 371, 383; as conditions of admission of 
States, 256, n. ; effect of the fourteenth article of, 83, 381, n. ; 
case under the same, 370; effect of the fifteenth article of, 388, n. 

Amendment protecting States against suit, its history, 138. 

Argyll's Reign of Law cited, 457, n., 459, n., 462, n. 

Attainder, legislative, 84. 

Austin's Province of Jurisprudence, cited, 140, n., 303, n., 322, n., 
329. 

Bagehot's The English Constitution, cited, 327, n., 522, n. 

Bateman's Political Law, etc., cited, 326, 328, 452. 

Battle, arbitrament of, 3, 89, 146, 353, 530. 

Belligerency, attributed in civil war, 49, 161, 189; of confederacy rec- 
ognized, 56, 57; judicial opinions on, 260. 

Belligerent, de facto, 162, 197; occupation, 177; government, 156. 

Bemis, on Hasty Recognition, etc., cited, 57, n. 

Bingham, Mr. John A., on the Civil Rights Bill, 216, n. ; on reconstruc- 
tion measures, 228, 236-244, 259. 

Bishop, Mr. J. P., in Monthly Law Reporter, 206, n., 270. 

Bismarck, Prince, expression of , cited, 96; his conversation with Gen- 
eral Grant, 488. 

Blaine, Mr. James, on reconstruction measures, 229, 239. 

Blockade, question of, in civil war, 49, 50. 



540 INDEX. 

Boutwell, Mr. George S., cited, 221, n., 227, n., 265, n., 272, n., 278; 
on State suicide, 227, 239; in committee on reconstruction, 172, 
224, 227; on the Declaration of Independence, 465, n. 

Bradley, Mr. Justice, in Keith v. Clark, 29-33, 156, 172, 176, n., 300, 
n. ; in the Legal Tender cases, 89, 473; in United States v. Klein, 
76; on State continuance, 33, 214; in the Slaughter House cases, 
373; in Collector v. Day, 383, n.; in the Ohio and Maryland Elec- 
tion cases, 388. 

Brightly's Digest, on insurrectionary States, 66, n. 

British Government's Proclamation of neutrality, 56, 187, n., 188, n., 
207; notice of President Lincolu's proclamation, 193, 199. 

Brownson's American Republic, cited, 106, n., 117, n., 118, n., 119. n., 
121, n., 127, 129, 133, n., 135, n., 145, n., 146, 149, n., 151, n., 
154, n., 206, n., 297, n. 

Bryce's Holy Roman Empire, cited, 460, n., 475, n., 507, n. 

Buchanan, President, his views of the war, 54, n. 

Burlamaqui's theory of government, 130, n. 



Calhoun's theory, 99 ; his position in debate with Mr. "Webster, 
132, n. 

Camp's Democracy, cited, 291. 

Carlyle on the civil war, 403. 

Catron, Mr. Justice, in the prize cases, 50. 

Centz, C. P., " The Republic of Republics," 511, n. 

Chase, Chief Justice, in Texas v. White, 8-15, 87, 128, 347, 442, 
444, n. ; in United States v. Morrison, 53; in Merchants' Bank 
v. Union Bank, 53 ; Mrs. Alexander's cotton, 178, n. ; Armstrong's 
foundry, 65; Keppel's Adm'r v. Petersburg R. R., 52; Lane County 
v. Oregon, 103, n., 442; Georgia v. Stanton, 212, n. ; Legal Tender 
cases, 434, 436, 437; Shortridge v. Macon, 78, 80; United States v. 
Klein, 75; on contraband of war, 184, 185, 196, n. ; his definition 
of a State, 9; citation of Penhallow v. Doane, 129; view of the 
party belligerent, 53; on confiscation, 67, 77; on the Emancipation 
Proclamation, 76; on treason, 79, 80; on the Fourteenth Amend- 
ment, 83; on State continuance, 9, 212, n., 214, 257; Mr. Pom- 
eroy's reference to his view, 442. 

Chase's Decisions in the Fourth Circuit, report of, by B. F. Johnson, 
cited, 52, 80, 82, 83, 84, 85, 86, 96, 300, n. 

Choate, Rufus, letter to the Maine Whigs, 97. 

Cicero, a maxim of, in civil war, 514, n. 

Civil war, as affecting neutrals, 18S. 

Claims, cases in the Court of, 180, 181. 



INDEX. 541 

Clergyman's point of view, 527, n. 

Clifford, Mr. Justice, in the Prize cases, 50, 61, n.; Miller v. The 
United States, 71; Tyler v. Defrees, 73; Ex parte Virginia, 382; 
the Election cases, 388, 389; Tennessee v. Davis, 411, 420; the 
Legal Tender cases, 437 ; on belligerency, 61, n. ; on confiscation, 
76-78, 165, n., 171. 

Coercion, of war and of municipal law, distinguished, 502. 

Colonies, the American, in the Revolution, 123, 125, 510. 

Confederate Government recognized as belligerent by foreign powers, 
56, 57; judicial presumption against its acts, 7. 

Confederate States, status of, 6, 34, 39; judicial presumption in favor 
of their acts, 6. 

Confiscation Acts, principle of the, 51, 62, 76, 170-194, 197, 199, 201, 
320; how regarded in the Supreme Court, 51, n., 62, 64, n., 67, n., 
79-81. 

Congress, the Revolutionary, 315, n. 

Congress, theory of its legislative power during the Rebellion, 197-202; 
future position of, 534. 

Congress, Acts of, 1861, July 13, relating to the blockade, etc., 50, 58, 
187, n.; August 6, to confiscation, 62; July 20, July 29, July 31, to 
suppression of rebellion, 59 ; 1862, July 2, July 17, to confisca- 
tion, etc., 59, 60, 62, 79; 1863, March 3, to claims, 185, n., 193, n. ; 
March 12, to abandoned property, etc., 59, 62, 67, 185, n., 193; 1864, 
July 2, to the same, 59; 1865, March 3, to Freedman's Bureau, 
216, n. ; 1866, April 9, to civil rights, 216, n. ; 1867, March 2, to re- 
construction measures, 23; July 19, to the same, 40, 59 ; 1868, June 
22, to admission of Arkansas to representation, 217, n. ; June 25, to 
admission of other States, 217, n.; July 27, to claims, 193; 1869, 
April 10, to admission of certain States, 218; December 14, to 
removing disabilities, 81, n. ; 1875, March 1, to civil rights, 380, 385; 
enforcement, 371. 

Congress, Resolutions of, 1861, July 22, on the purposes of the war, 
42, n. ; 1865, Feb. 18. as to Tennessee as a rebel State, 218, n. ; 1866, 
July 24, restoration of Tennessee to representation, 218, n. ; 1868, 
July 20, excluding certain States from representation, 41. 

Conquest of States, doctrine of, 258, 260, 272. 

Constitution, the written, two doctrines of its nature, 99, 101; how 
regarded as a fetish, 95, 305, 321, 339, n. , 357, 516 ; as a contract, 100, 
116-118, 122; as a grant by the States, 102; as a law given by one 
people, 103-115;. views of the framers of, 298, 417; from whom 
derived, 141, 296; its force as law, 306; construction of, in future 
cases, 368. 

Constitution, the, as fact, 130, 319. 



542 INDEX. 

t 

Constitutions, their source, 497. 
Contraband of war, cotton as, 77, 178, 183. 
Contradictions in terms, some, enumerated, 90. 
Conway, Mr. M. F., speech of, in 1861, 260. 
Cooley's Constitutional Law, cited, 359, n. 

Constitutional Limitations, cited, 125, n., 132, n., 147, n., 

257, n., 509. 
view of sovereignty of the people, 106, n., 114, n., 362, n. 
Cooley on the Declaration of Independence, 509, n. 
Cox, Mr. S. S., in debate, 500, n. 

Curtis, Judge B. E,., on executive power, 75, 203; letter of, 268; 
theory of, 271. 
^Curtis, Mi-. G. T.,his article in Harper's Magazine, 384; Discourse by, 
101, n., 103., n., 106, n., 115, n., 294, 300, 337, 361, 448, n. 492, n. ; 
History of the Constitution, 134. n., 482, 485; Life of Webster, 
115, n., 440, n.; Oration, July 4, 1862, 101, n. 

Dana, Mr. R. H., his argument in the prize cases, 169; on the Eman- 
cipation edict, 347; on the supremacy of the general Government, 
353; his edition of Wheaton, see Wheaton. 

Davis, Mr. Jefferson, indictment of, 79, 82; his Rise and Fall of the 
Confederate Government, 511, n. 

Davis, Mr. Justice, in United States v. Anderson, 67; in Tyler v. 
Defrees, 72. 

Declaration of Independence, 96, 297, 455, n., 464, 509. 

De Maistre, on Political Constitutions, 131, n. 

Democratic oligarchy, descriptive of form of government, 140, 342. 

De Tocqueville, cited, 102, n., 291, n., 301, n., 313 n., 336, n. 

Dicey, Mr. A. Y., letter to The Nation, 330. n., 331, n. 

Doolittle, Senator, in debate, 276, n., 282, n. 

Draper, Dr. J. W., History of the Civil War, 97, 474, n. 

Duval, Judge, in Habicht v. Alexander's Ex'r, 194. 

Eldridge, Mr., in debate on reconstruction, 237, 240. 

Elective franchise, political basis of, 404-409; Acts of Congress on, 

386, n., 396, n. 
Emancipation, proclamation of, 195, 347, n., 519, n. 
English view of the civil war, 56, 299, 496. 

Falck on popular sovereignty, 114, n. 
Federalist, cited, 97, n., 99, n., 132, 303, n. 
Ferris, Mr. A. F., in North American Review, 461, n. 
Fessenden, Senator, in debate, 225. 



INDEX. 543 

Fetish worship, its character, 516. 

Feudal relations, no analogy with the Union, 206. 

Field, Mr. Justice, in Greathouse's case, 60; Miller v. United States, 
71; Tylers Defrees, 73; Williams v. Bruffy, 162, n., 164; Wal- 
lack v. Van Riswick, 177, n. ; Carlisle v. United States, 185, n., 
191, n.; Spott v. United States, 262, n. ; Munn v. Illinois, 370; 
The Election cases, 398, n., 399; Ex parte Virginia, 382; Tennessee 
v. Davis, 411; The Legal Tender cases, 437; views on confiscation, 
76, 78. 

Finck, Mr., in debate, 244, n. 

Foot, Senator, see Redfield's letter to. 

Force, the foundation of law, 307, 497, 502. 

Forma regiminis and forma imperii, 293, 302, 526. 

Founders of the Constitution, 401, 465, n. 

Franchise, see Elective franchise. 

Frederick, of Prussia, his code, 336, n. 

Frothingham's Rise of the Republic, 304, n., 453, n., 509, n. 

Garfield, James A., President, Inaugural of, 443, 450, 465, 524, n.; 
remarks in Congress, January 28, 1864, 504; April 8, 1864, 498, 
502, 537, n. ; January 13, 1865, 487, n. ; December 16, 1869, 457, n. ; 
August 4, 1876, 451, 465 ; March 29, 1879, 466, n. ; July 27, 1879, 
463, n., 491, n. 507; his position on reconstruction, 468; citation 
of Pinckney and Wilson, 481 ; on the location of sovereignty, 
485, n., 507. 

Georgia, existence of the State, 18, 21. 

Government, action of, after war, significant, 4; senses of the word, 
130, 140, n., 303; State, as illegal or usurping, 149, n., 153; pre- 
sumption as to its acts, 156; of the United States, its tenure of 
power, 131, 303, 341, 363, n. 

Grant, General U. S., conversation with Bismarck, 488. 

Green, Mr., argument of, in Davis's case, 163, n. 

Grier, Mr. Justice, dissenting in Texas v. White, 16, 89; opinion in 
the Prize cases, 17, n., 49, 89; in the Legal Tender cases, 437; other 
opinions by, 17, 159, 169. 

Halleck's International Law, 178, n. 

Hamilton, Alexander, on sovereignty, 122, n. ; his theory of govern- 
ment, 402, n. 

Harlan, Mr. Justice, in Keith v. Clark, 27, 28, 149, n. ; on belliger- 
ency, 61, n. 

Hayes, President, message of, 365, n., 399, n. 

Herder, a remark by, 512, n. 



544 INDEX. 

Hildreth's History of the United States, 138, n. 

Hillard, Mr. George S., in the Law Review, etc., 205, n. 

Hillebrand, Karl, Lectures, 461, n., 512, n. 

Historical basis of sovereignty, 105, 141. 

Historicus, Letter of, in the London Times, 57, n. 

History, distinguished from doctrine, 99 ; variations in statement of, 

99-104. 
House of Representatives, resolutions of July 22, 1861, 42, n. 
Howe, Senator, in debate, 224; resolutions offered by, 255, 273, n., 

278, n., 281, n. 
Hughes, Judge, decision by, 174. 
Hurd, Mr. Frank H., remarks by, 488, n. 
Hypothesis of the people, 114, 440. 

Ideas, as law, 278, n., 461; as engaged in war, 463. 
Iredell, Justice, in Penhallow v. Doane, 10, n.,.129. 

Jackson, President, his theory of the government, 103, n. 

Jameson's Constitutional Convention, cited, 106, n., 110, n., 114, n., 
127, n., 128, n., 323, 325, 326, 355, 361, 364, 366, 440, n., 474, n., 
508, n. 

Jay, Chief Justice, in Chisholm v. Georgia, 122, n., 137, 141, n., 312, 
329. 

Johnson, Gen. Bradley T., see Chase's Decisions; his view of the war, 
161, n., 300, n. 

Johnson, President, his proclamation of April 2, 1866, 39; his procla- 
mation of amnesty, 81 ; his theory of government, 208 ; his refer- 
ence to Mr. Lincoln's proclamation, 57; his plan of reconstruction, 
38, 227, n., 232, 251, 275, 288, n. 

Johnson, Reverdy, Senator, remarks in debate, cited, 224, n., 231, 
254, n., 283. 

Judicial opinions, force of, generally, 215, 350; on the States of the 
Confederacy, 6, 17; as possibly indicating a revolution, 368. 

Judiciary, relation of, to political questions, 5, 105, 215 ; alternative for, 
107; inconsistent positions of, 207. 

Jurist, the London, 184, n., 205, n. 

Kent's statement of the origin of the Constitution, 111, n. 

Law and ethics distinguished, 515, n., 527, n. 

Law Magazine, London, 202, n., 312, n. 

" Law of Freedom and Bondage," reference to, 326, 361. 

Laws of personal extent, 424, n. 



INDEX. 545 

Law, sovereignty of, as improper term, 96, 97. 

Lawyer's point of view, when improper, 109, 211, n., 284, n., 443. 

Lewis, Sir George Cornewall, cited, 291. 

Liberty bell, its motto, 465, n. 

Lieber's Political Ethics, cited, 317, n., 331, n., 332, n. ; Civil Lib- 
erty, cited, 313, 332, n. ; Miscellaneous Writings, cited, 475, n., 
518; views of law and sovereignty, 521, n. ; of nationalism, 475. 

Lincoln, President, his view of States in union, 142, 483; of States in 
the civil war, 54; of treason, 80; of attainder, 177; on violation of 
the Constitution, 514; his policy of reconstruction, 35, 36, 149, n., 

288, n.; on questions as abstractions, 288; on loyal people, 149, n. ; 
other references to, 251, 252, 275, 319; date of his death, 287, n. ; 
his inaugural, cited, 98 n., 143, n., 144, n.; his message, July 4, 
1861, cited, 142, 143, n., 483; his proclamations, on the object of 
the war, April 15, 19, 1861, 54, 55; on emancipation, 195, n., 
201, n., 519 n.; his letter to Colonel Hodges, 470, 513; his Gettys- 
burg address, 523. 

Long, Mr., of Ohio, debate on his expulsion, 498. 

Lords, debate in the House of, on the President's proclamation, 193, 

199. 
Loring, Judge, in Collie v. The United States, 181, 190. 

Mr. Charles G., his pamphlet, cited, 269, 280, 289, n., 449, n. 
Louisiana, reconstruction of, 245, 258. 
Lowell, Mr. James R., in the North American Review, 271, 278, 

289, n., 302, n., 347. 

Loyal citizens composing State, 149, n., 252. 
Loyal Publication Society, 88, 518, a. 
Lushington, Dr., cited, 184, n. 
Lyons, Lord, letter of, to Lord John Russell, 187, n. 

Macaulay's History of England, cited, 233, 469, n. 

Machiavelli's principle, 303, n. 

Macllvaine, Dr., in the Princeton Review, 124, 334. 

Madison, James, letter to Rives, 101, n., 104, n., 116, n. ; letter to 

Everett, 121, 122; his view of the Constitution, 130, 324, n., 402 n.; 

in the Federalist, 303, n., 402, n. 
Maine, Dr., on Ancient Law, cited, 507, n. ; on sovereignty, 329, n., 

462. 
Marsh, Mr. George, P., letters to The Nation, 127, 128, 273, n. 
Marshall, Ch. J., his view of the sovereign people, 312, n., 338, n., 

429 n. ; his language in Cohens v. Virginia, 429 , 430 ; his influence 

on the Constitution, 479, n. ; time of his chief-justiceship, 311, n. 
Mexicauization, a political term, 525, n. 



546 IXDEX. 

Miller, Justice, in Texas v. White, 18; in Keith v. Clark, 22-26, 155, 
157-159; in Armstrong's foundry, 64; in Tyler v. Defrees, 72;- in 
United States v. Klein, 75; in Sprott v. The United States, 178, n., 
196, n., 201, n.; in the Slaughter House cases, 370, 439, n. ; in the 
Legal Tender cases, 437. 

Milligan, Judge, in La Plante's case, 187, n. 

Monthly Law Reporter, cited, 206. 

Morgan, John T., Senator, in North American Review, 437. 

Morrill, Lot C, Senator, in debate on military government, 258, n. 

Motley, Mr. J. L., letter to the London Times, 507, n. 

Mulford's, Dr., The Nation, cited, 475, n. 

Nation, The, letters of Mr. Marsh in the, 273; of Mr. Pomeroy, 
441, n.; of Mr. Dicey, 330; citations from, 342, n., 521, n. 

Nation, hypothesis of the sovereign, 108, 240, n., 361. 
will of, how known, 239, n. 

National government, use of the term, 361. • 

Nationalism as a law, 452, 457. 

Nationality, scientific basis of, 98, n. 

Nebraska, admission of the State of, 254, n. 

Necessity, argument from, 201, 513. 

Nelson, Mr. Justice, In re Egan, 44, n.; in the Prize cases, 50; in 
Mauran v. Ins. Co., 50, n., 58; in Georgia v. Stanton, 212. 

Neutrality, British proclamation of, May 13, 1861, 58, 188 n., 207. 

Nott, Judge, in Hill's case, ISO, 181, 186-188, 193, n. ; in Green's 
case, 190, n. ; in Harrison's case, 194, n., 198. 

O' Conor, Mr. Charles, argument in J. Davis's case, 84, 163. n. 

Palmer, Sir Roundell, his argument, 317. 

Parker, Joel, Judge, his lectures, cited, 359, 531; articles in the North 

American Review, 203, 267, n., 275, 279, 437. 
Parties, distinction of political, 524. 
Passion for power the foundation of government, 307. 
Patterson, Judge, in Penhallow v. Doane, 315, 316, n. 
People, meaning of the word, 109, 523; in the Constitution, 112; of 

the colonies, 125; idea of the sovereignty of, 104, 110, 330; as a 

mass not sovereign, 112; not the authors of the Constitution, 114; 

the political, as States, 125, 126, 132. 
Phillimore's International Law, cited, 121, n., 134, n., 162, n., 187, n., 

191, n., 262, n., 317, n., 322, n. 
Pinckney, Charles Cotes worth, his view of the States, 481. 
Piracy, President's proclamation on, 193; relation to civil war, 206. 



INDEX. 547 

Political and legal knowledge distinguished, 124. 

Political department, the, 20, 160, 213, 214, 249, 251, n. 

Pomeroy, J. N., on Constitutional Law, cited, 110, n., 114, n., 118, n. , 

124, n., 127, n., 139, 140, 439; on the elective franchise, 404,409; 

mistaken as to Brownson's view, 129, n. ; reference to Rome, 474, n. ; 

on the sovereignty of the nation, 324-328, 334-337; on authority of 

the Supreme Court, 352; his agreement with Chase, Ch. J., 442. 
Postliminy, effect of, 178, 195. 
Property with hostile character, 197, n., 200. 

Raymond, Mr. H. J., remarks in Congress, 239, n. 

Rebellion, date of close of, 4, n. 

against whom, 151, 354, n., 461. 
the term justified, 536. 

Reconstruction, committee on, 208, 213, 224, n. ; report on, by ma- 
jority, 42, 88, n., 219, n. ; by minority, 48, 263, n. ; view of, taken 
by the Supreme Court, 213; in Abbott's Digest, 211, n.; theories 
of, 222, 408; a consequence of, 536, n. ; bill for, by H. W. Davis, 
37; a rejected bill for, 221, n.; bill of March 2, 1867, 220-232; 
action of Congress on, 39-41, 216, 235, 40S. 

Reddie, James, on emancipation by war power, 196, n. 

Redfield, Judge, on the civil war, 205, n., 272, n., 269, 444-449. 

Representatives, election for, see Elective franchise. 

Republican government, guaranty for, in connection with recon- 
struction, 235-256; bills for, 37, 231, n. ; Supreme Court on, 249; 
Bradley, J., on, 432, n. 

Reserved powers, 114, 131, 363. 

Resolutions, see Congress. 

Review, North American, cited, 95, n., 178, 196, n., 203, 278, 279, 
347, 437, n., 461, n. 

Review, Princeton, cited, 124, 334. 

Revolution, doctrine of right of, 189, n., 359, n., 498; how recognized, 
340, 355; of 1776, its character, 123, 314, 501; question of, since 
1861, 107, 333, 346, 368, 408, 530. 

Rights, individual, their historical basis, 376; the civil, bill for, 380. 

Roman empire, comparisons with, 474. 

Russell, Earl, on the civil war, 491. 

Secession, theory of, 88; by what reasoning justified, 286; alternative, 

on resisting it, 105; ordinances, their effect, 145. 
Shellabarger, Mr., in debate, 232, 247, 258. 
Sherman, Senator, in debate, 231. 
Slavery, its relation to the Rebellion, 107, 467, 535; its abolition by 

States, 376, n. ' 



548 ESTDEX. 

Smith, Mr. Goldwin, Ms view of the civil war, 496, n. 

Social compact, influence of the theory, 121, 130, 148, 309, 310. 

Sovereignty, defined by Worcester, 104, n. ; views of its existence, 96, 
106, 507, n.; its possession above law, 96, 97, 98, 141, 508; its in- 
divisibility in possession, 96, 107, 120, 141 ; its distribution in exer- 
cise, 139, 299, 301; judicial views of, 418; new elements in the 
question, 105; always transferred by force, 121; none in individ- 
uals, 122, 124; prospect of the question in the future, 526; held by 
States in union, 127, 144, 147; of the people, theory of, 140, 330. 

Sprague, Judge, in the case of the Amy Warwick, 49, n., 166, 189, n., 
199, n., 263, 268, 271, 275. 

Stanbery, Atty.- General, argument, 252, n., 257, n. 

State, definition of, by Chase, Ch. Justice, 9; theory of a loyal, 148, 
157; corporate responsibility in secession, 148; status of, apoliti- 
cal question, 211, 279, 282. 

State governments, distinguished from States, 121. 

State rights, foundation of the doctrine of, 107. 

State suicide or lapse, demonstrated as fact, 146, 150, 152, 154, 201, 
316; committee on reconstruction on, 222, 227, 274; see Brown- 
son, Howe, Sumner. 

States, the political people of, recognized, 123. 

States of the Union, question of their original sovereignty, 99, 100, 
508 ; if bound by contract, 100 ; doctrine of grant by, 102 ; not 
under legal obligation, 305; holding sovereignty in union, 103, 
144, 147, 315; never severally sovereign, 131; origin of their united 
existence, 126, 141, 508; their continuance only in voluntary union, 
103, 132, 135, 136, 141; recognized internationally, 317. 

States of the Confederacy, question of their status, 4, 6, 50, 57, 59, 90; 
recognized as belligerents, 50, 56, 57, 59, 170, 192; doctrine of con- 
quest of, in report on reconstruction, 222, 227, 274 

Stephen, Sir James Fitz James, essay on Liberty, etc., 492-497, 502. 

Stephens, Mr. Alexander H., his course in the war, 88, n., 275; view 
of sovereignty, 139, n. ; History of the War, 208. 

Stevens, Mr. Thaddeus, remarks in Congress, 219, 224, 225, 232, 243; 
his position, 244, 257, 289, n. ; on sovereignty, 433, n. 

Stickney, A True Republic, cited, 301, 391. 

Storrs, Rev. R. S., Jr., centennial address, 4S6, n. 

Story, Mr. Justice, his period on the bench, 311, n. ; theory of the peo- 
ple as sovereign, 109, 111, n., 440; decision in La Santissima Trini- 
dad, 184; his theory of law, 521 ; of the Declaration of Independence, 
501, n. ; Commentaries, cited, 96, n., 97, n., 122, n. ; historical view 
taken in, 316-32S; on the election of representatives, 395, 402, 406. 

Sifcory, Mr. W. W., letter to the London Daily Xews, 534, n. 



INDEX. 549 

Strong, Mr. Justice, on confiscation, 76, 78; in Miller v. United States, 
70; in Planters' Bank v. Union Bank, 175, n. ; in Munn v. Illinois, 
370, n. ; in Tennessee v. Davis, 375, 411; in the Virginia cases, 379, 
3S1, n. ; in the Legal Tender cases, 437. 

Sumner, Senator, his claims for legislative power, 202, n. ; resolutions 
offered by, 265, n., 274 ; his view of State suicide, 273, n., 276, 233. 

Supreme Court of the United States, extent of its authority, 350; con- 
tradictions by, 90; its recognition of sovereignty, 108; on the 
divisibility of sovereignty, 418; its theory of the civil war, 320; 
doctrine of amending the Constitution, 383 ; alternative forced upon 
it, 105, 107; its position in civil war, 538. , 

Swayne, Mr. Justice, on the seceded States, 215, 256, n. ; in Texas v. 
White, 18; in White v. Hart, 18-21, 305; in Hickman v. Jones, 
51; in McVeigh v. United States, 68; in the Slaughter House cases, 
374, 413; in the Legal Tender cases, 437. 

Taine's Ancien Regime, 313, n., 314, n.; a remark by, 509, n. 

Taney, Chief Justice, in the Prize cases, 50; in Dred Scott's case, 135; 
a dictum of, 253. 

Tennessee, eastern, its status, 163, n. 

Texas, existence of the State, 8, 12, 159; existence of its govern- 
ment, 13. 

Thayer, Mr. , in debate, 230, n. 

Tobacco, as contraband of war, 178. 

Treason, question of, in courts of law, 60 ; no decision on, since the 
Rebellion, 80, 83, n. ; contradictory views of, 203, 205. 

Treaty of Paris, 1783, 133, n., 318. 

Tucker's Blackstone, 147, n. 

Ultramontane view of government, 139, n. 

Union, views of its nature, 87, 88 ; not a name for the general govern- 
ment, 102 ; in what sense saved, 490. 

United States, name why proper, 140; Dr. Woolsey and W. W. Story's 
opinion, 534, n. ; not a name for the general government, 102, 440; 
what are the, 130, n., 151, 297, 305, 497. 

Upshur's review of Story, 501, n. 

Usurpation, to be accepted under alternative, 107, 333, 347, 355. 

Virginia, resolution of the State in 1782, 504, n. ; in ! 579, on the action 
of Judge Rives, 90, n. 
Western, case of the State, 163, n. 
Von Hoist, cited, 93, 96, 106, 121, n., 144, 147, 161, 2S1, 314; on indi- 
visibility of sovereignty, 96, 106. 






550 INDEX. 

Waite, Chief Justice, in White v. Hart, 18-21 ; in Keith v. Clark, 27 ; 
in Young v. United States, 178, 182 ; in United States v. Dickel- 
man, 191, n., 193, n. ; in Munn v. Illinois, 370, n. ; in United States 
v. Cruikshank, 377, n. ; on cotton as contraband, 77; on belligerent 
right of a sovereign against rebels, 78; other citations of, 160, 164, 
415, n. 

War, its relation to political facts, 2, 354, n., 497; law of, for confisca- 
tion, 174, 197, 238, n. ; for emancipation, 199, n. ; in reconstruction, 
258 ; the civil, its causes, 107, 535. 

Washburn, Judge Emory, lecture by, 360, 531. 

Webster, Daniel, works, cited, 305, 311, 344; his theory of the Consti- 
tution, 337, 440, n. ; his argument in the Senate, 96, n., 99, n. ; 
on the social compact, 310; on sovereignty, 507; Mr. G. T. Curtis 
on his views, 115, n., 272. 

Welling, Mr. J. C, on the emancipation edict, 196, n. 

Westbury, Lord Chancellor, cited, 199. 

Wheaton's International Law, cited, 162, n., 184; Dana's notes to, 
165, n., 167, n., 170, 177, 178, 179, 187, n., 191, 198, 203, 206; Law- 
rence's notes to, 162, 166, n., 184, n., 187, u., 191, n., 196, n., 199, 
206, 263, n. 

Whiting's War Powers, 81, n. 

Williams, Senator, in debate, 223, 224. 

Wilson, Henry, Senator, in debate, 246, 298, 329 ; his history of Recon- 
struction, cited, 214, n., 219, n., 289. 

Wilson, James, Judge, in Chisholm v. Georgia, 137, 498, n. ; his view 
of States as given by Mr. Garfield, 484; by Mr. G. T. Curtis, 486. 

Wood, Sir W. Page, V. C, cited, 317, 319. 

Woolsey's Political Science, cited, 102, n., 120, n., 125, n., 137, n., 207, 
303, n., 305, n., 322, 520, 534, n. 

Wright, Senator, in debate, 238, n. 

Writers on the civil war, 452, 456. 

Yeaman, On Government, cited, 323. 



VlAsT-Ho^U. 



University Press : John Wilson & Son, Cambridge. 



